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Full text of "North Carolina Register v.9 no. 7 (7/1/1994)"

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tNORTH CAROLINA 

REGISTER 



IN THIS ISSUE 



EXECUTIVE ORDERS 



IN ADDITION 

Tax Review Board 



PROPOSED RULES 
Commerce 

Environment, Health, and Natural Resources 
Human Resources 
Secretary of State 
State Personnel 



TITUl 

tiohI 



RRC OBJECTIONS 



CONTESTED CASE DECISIONS 



ISSUE DATE: July 1, 1994 



Volume 9 • Issue 7 • Pages 412 - 503 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 

The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the General 
Statutes. All proposed administrative rules and notices of public 
hearings filed under G.S. 150B-21 .2 must be published in the Register. 
The Register will typically comprise approximately fifty pages per 
issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription at 
a cost of one hundred and five dollars ($105.00) for 24 issues. 
Individual issues may be purchased for eight dollars ($8.00). 

Requests for subscription to the North Carolina Register should be 
directed to the Office of Administrative Hearings, P. O. Drawer 27447, 
Raleigh, N.C. 27611-7447. 

ADOPTION, AMENDMENT, AND REPEAL OF 
RULES 

The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 1 50B 
of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must first 
publish notice of the proposed action in the North Carolina Register. 
The notice must include the time and place of the public hearing (or 
instructions on how a member of the public may request a hearing); a 
statement of procedure for public comments; the text of the proposed 
rule or the statement of subject matter; the reason for the proposed 
action; a reference to the statutory authority for the action and the 
proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days must 
elapse following publication of the notice in the North Carolina 
Register before the agency may conduct the public hearing and at least 
30 days must elapse before the agency can take action on the proposed 
rule. An agency may not adopt a rule that differs substantially from the 
proposed form published as part of the public notice, until the adopted 
version has been published in the North Carolina Register for an 
additional 30 day comment period. 

When final action is taken, the promulgating agency must file the 
rule with the Rules Review Commission (RRC). After approval by 
RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative Hearings 
for publication in the North Carolina Administrative Code (NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or before 
filing with OAH for publication in the NCAC. 



TEMPORARY RULES 

Under certain emergency conditions, agencies may issue tempo- 
rary rules. Within 24 hours of submission to OAH, the Codifier of 
Rules must review the agency's written statement of findings of need 
for the temporary rule pursuant to the provisions in G.S. 150B-21.1. If 
the Codifier determines that the findings meet the criteria in G.S. 
150B-21.1, the rule is entered into the NCAC. If the Codifier 
determines that the findings do not meet the criteria, the rule is returned 
to the agency. The agency may supplement its findings and resubmit 
the temporary rule for an additional review or the agency may respond 
that it will remain with its initial position. The Codifier, thereafter, will 
enter the rule into the NCAC. A temporary rule becomes effective 
either when the Codifier of Rules enters the rule in the Code or on the 
sixth business day after the agency resubmits the rule without change 
The temporary rule is in effect for the period specified in the rule or 1 80 
days, whichever is less. An agency adopting a temporary rule must 
begin rule-making procedures on the permanent rule at the same time 
the temporary rule is filed with the Codifier. 

NORTH CAROLINA ADMINISTRATIVE CODE 

The North Carolina Administrative Code (NCAC) is a compilation 
and index of the administrative rules of 25 state agencies and 38 
occupational licensing boards. The NCAC comprises approximately 
15,000 letter size, single spaced pages of material of which approxi- 
mately 35% is changed annually. Compilation and publication of the 
NCAC is mandated by G.S. 150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency i< 
assigned a separate title which is further broken down by chapters 
Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of fwc 
dollars and 50 cents ($2.50) for 10 pages or less, plus fifteei 
cents ($0.15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling ii 
excess of 15,000 pages. It is supplemented monthly witl 
replacement pages. A one year subscription to the fill 
publication including supplements can be purchased fo 
seven hundred and fifty dollars ($750.00). Individual vol 
umes may also be purchased with supplement service. Re 
newal subscriptions for supplements to the initial publicatioi 
are available. 

Requests for pages of rules or volumes of the NCAC should b 
directed to the Office of Administrative Hearings. 

CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, | 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to Volum 
1, Issue 1, pages 101 through 201 oftheNorthCarolinaRegisterissue 
on April 1, 1986. 



FOR INFORMATION CONTACT: Office of Administra- 
tive Hearings, ATTN: Rules Division, P.O. Drawer 27447, 
Raleigh, North Carolina 2761 1-7447, (919) 733-2678. 



NORTH 
CAROLINA 
REGISTER 



ISSUE CONTENTS 



I. EXECUTIVE ORDERS 

Executive Orders 50-52 



412 




n. IN ADDITION 

Tax Review Board 



415 



Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director ofAPA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 

This publication is printed on permanent, 
acid-free paper in compliance with 
G.S. 125-11.13. 



m. PROPOSED RULES 
Commerce 

Alcoholic Beverage 

Control Commission 423 

Environment, Health, and 
Natural Resources 

Coastal Management 443 

Health Services 445 

Mining Commission 442 

Human Resources 

Facility Services 423 

Medical Assistance 440 

Mental Health, Developmental 
Disabilities and Substance Abuse 

Services 430 

Vocational Rehabilitation 

Services 434 

Secretary of State 

Securities Division 476 

State Personnel 
Office of State Personnel 477 

IV. RRC OBJECTIONS 479 

V. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 484 

Text of Selected Decisions 

93 DST 1054 490 

94 EHR 0329 496 

VI. CUMULATIVE INDEX 502 



NORTH CAROLINA REGISTER 

Publication Schedule 

(April 1994 - January 1995) 



Volume 
and 
Issue 

Number 


Issue 
Date 


Last Day 

for 

Filing 


Last Day 
for Elec- 
tronic 
Filing 


Earliest 

Date for 

Public 

Hearing 

15 days 

from 

notice 


* End of 

Required 

Comment 

Period 

30 days 

from 

notice 


Last Day 

to Submit 

toRRC 


** Earliest 

Effective 

Date 


9:1 


04/04/94 


03/11/94 


03/18/94 


04/19/94 


05/04/94 


05/20/94 


07/01/94 


9:2 


04/15/94 


03/24/94 


03/31/94 


05/02/94 


05/16/94 


05/20/94 


07/01/94 


9:3 


05/02/94 


04/11/94 


04/18/94 


05/17/94 


06/01/94 


06/20/94 


08/01/94 


9:4 


05/16/94 


04/25/94 


05/02/94 


05/31/94 


06/15/94 


06/20/94 


08/01/94 


9:5 


06/01/94 


05/10/94 


05/17/94 


06/16/94 


07/01/94 


07/20/94 


09/01/94 


9:6 


06/15/94 


05/24/94 


06/01/94 


06/30/94 


07/15/94 


07/20/94 


09/01/94 


9:7 


07/01/94 


06/10/94 


06/17/94 


07/18/94 


08/01/94 


08/22/94 


10/01/94 


9:8 


07/15/94 


06/23/94 


06/30/94 


08/01/94 


08/15/94 


08/22/94 


10/01/94 


9:9 


08/01/94 


07/11/94 


07/18/94 


08/16/94 


08/31/94 


09/20/94 


11/01/94 


9:10 


08/15/94 


07/25/94 


08/01/94 


08/30/94 


09/14/94 


09/20/94 


11/01/94 


9:11 


09/01/94 


08/11/94 


08/18/94 


09/16/94 


10/03/94 


10/20/94 


12/01/94 


9:12 


09/15/94 


08/24/94 


08/31/94 


09/30/94 


10/17/94 


10/20/94 


12/01/94 


9:13 


10/03/94 


09/12/94 


09/19/94 


10/18/94 


11/02/94 


11/21/94 


01/01/95 


9:14 


10/14/94 


09/23/94 


09/30/94 


10/31/94 


11/14/94 


11/21/94 


01/01/95 


9:15 


11/01/94 


10/11/94 


10/18/94 


11/16/94 


12/01/94 


12/20/94 


02/01/95 


9:16 


11/15/94 


10/24/94 


10/31/94 


11/30/94 


12/15/94 


12/20/94 


02/01/95 


9:17 


12/01/94 


11/07/94 


11/15/94 


12/16/94 


01/03/95 


01/20/95 


03/01/95 


9:18 


12/15/94 


11/22/94 


12/01/94 


12/30/94 


01/17/95 


01/20/95 


03/01/95 


9:19 


01/03/95 


12/08/94 


12/15/94 


01/18/95 


02/02/95 


02/20/95 


04/01/95 


9:20 


01/17/95 


12/21/94 


12/30/94 


02/01/95 


02/16/95 


02/20/95 


04/01/95 



This table is published as a public service, and the computation of time periods are not to be deemed binding 
or controlling. Time is computed according to 26 NCAC 2B .0103 and the Rules of Civil Procedure, Rule 
6. 

* An agency must accept comments for at least 30 days after the proposed text is published or until the date 
of any public hearing, whichever is longer. See G.S. 150B-2 1.2(f) for adoption procedures. 
** The "Earliest Effective Date " is computed assuming that the agency follows the publication schedule above, 
that the Rules Renew Commission approves the rule at the next calendar month meeting after submission, and 
that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 



Raised 03/94 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NO. 50 

NORTH CAROLINA SPORTS 

DEVELOPMENT COMMISSION 

WHEREAS, the Department of Commerce is 
charged with the duty of promoting and assisting 
in the total economic development of North Caroli- 
na; and 

WHEREAS, sporting events represent an ex- 
panding market with positive economic effects; and 

WHEREAS, it is the duty of the Sports Develop- 
ment office to develop and promote efforts to 
recruit sporting events, sporting franchises, and 
training centers to North Carolina; and 

WHEREAS, an advisory commission to advise, 
assist, and support the Sports Development Office 
and the Department of Commerce in matters 
involving sports development initiatives is neces- 
sary. 

NOW, THEREFORE, by the power vested in me 
as Governor by the laws and Constitution of North 
Carolina, IT IS ORDERED: 

Section 1. Establishment. 

There is hereby established the North Carolina 
Sports Development Commission. 

Section 2. Membership. 

The Governor shall appoint the members of the 
Commission. The Commission shall consist of 20 
members. Members shall be representatives of 
sports agencies and organizations, government 
entities, the business community, or individuals 
who have an interest in sports development. 

Section 3. Terms. 

All members shall serve four year terms at the 
pleasure of the Governor. 

Section 4. Officers. 

The Governor shall designate a Chair from the 
membership to serve at his pleasure. The Com- 
mission shall elect any other officers it deems 
necessary. Vacancies in any office shall be filled 
for the unexpired term by the original appointing 
authority. 

Section 5. Meetings. 

The Commission shall meet at least quarterly. A 
quorum shall consist of a majority of the current 
Commission membership. 



Section 6. Administrative Su pport 
and Expenses. 

(a) The staff of the Sports Development Office 
shall provide administrative support to the Com- 
mission. A Sports Development Office staff 
member shall serve as Administrator to the Com- 
mission. Permanent records of all Commission 
business shall be maintained in the Sports Devel- 
opment Office and shall be the responsibility of the 
Administrator. 

(b) Members of the Commission shall receive 
travel and subsistence expenses, when available, 
from Department of Commerce funds, pursuant to 
N.C.G.S. 138-5. 

Section 7. Duties and Powers. 

The Commission shall perform such duties as 
assigned by the Governor. It shall have the fol- 
lowing specific duties, powers, and functions: 

(1) assist the Sports Development Office in 
planning and implementation of sports 
development initiatives; 

(2) act as spokesperson for the State of North 
Carolina in its efforts to attract sports 
activities; 

(3) assist in the creation and updating of 
directories containing the following infor- 
mation: 

A. current sporting events being held in 
our State; 

B. facilities available for sporting events in 
our State; and 

C. available sporting events and bid dead- 
lines; 

(4) assist the Sports Development Office in 
forming a partnership with the governing 
associations of sporting activities, the 
North Carolina business community, 
individuals who conduct major and minor 
sporting events, and key facility manag- 
ers in our state; 

(5) assist in project promotion; and 

(6) advise and assist in the development of 
future goals and objectives for the Sports 
Development Office. 

The Commission's role shall be advisory in 
nature. All decisions regarding the adoption of 
policies shall be the responsibility of the Secretary 
of the Department of Commerce and the Sports 
Development Office. 

Section 8. Annual Report. 

The Commission shall report annually to the 
Governor regarding the progress of sports develop- 
ment in North Carolina. 



9:7 



NORTH CAROLINA REGISTER 



July 1, 1994 



412 



EXECUTIVE ORDERS 



Section 9. Effect on Other Executive Orders. 

Executive Order Number 109, as amended by 
Executive Order Number 161, of the Martin 
Administration is hereby rescinded. 

This Executive Order shall be effective immedi- 
ately. 

Done in the Capital City of Raleigh, North 
Carolina, this the 1st day of June, 1994. 

EXECUTIVE ORDER NO. 51 
NORTH CAROLINA FILM COUNCIL 

By the authority vested in me as Governor by the 
Constitution and laws of North Carolina, IT IS 
ORDERED: 

Section 1. Establishment. 

The North Carolina Film Council is hereby 
established. 

Section 2. Duties. 

The Council shall have the following duties and 
functions: 

(a) Advise the Governor on matters that 
would enhance the likelihood of the film 
industry choosing North Carolina for 
filmmaking. 

(b) Advise the Secretary of Commerce and 
the Film Division in the Department of 
Commerce on film-making activities 
within North Carolina. 

(c) Serve as a forum for film-making con- 
cerns and recommendations relating to 
the film industry in North Carolina that 
would include, but not be all inclusive of, 
the following: 

(1) Compile a database registry of locations 
within North Carolina that would be 
potential sites for filmmaking; 

(2) Develop the financial capability of 
North Carolina to support projects with 
local financing of the film industry; 

(3) Develop a support network for produc- 
tion activities relating to the film indus- 
try; 

(4) Develop a manual for the use of local 
governments and municipalities detail- 
ing supportive activities that would 
facilitate filmmaking in their communi- 
ties; 

(5) Assist in the support and coordination 
of the activities of local film commis- 
sions in North Carolina; 



(6) Provide advice on projects directly 
assigned by the Governor to the Coun- 
cil; 

(7) Assist with recruitment of the film 
industry to select North Carolina sites 
for filmmaking; and 

(8) Develop an annual report on the eco- 
nomic impact of the film-making indus- 
try in North Carolina, along with rec- 
ommendations to increase the film- 
making activities within North Caroli- 
na. 

Section 3. Membership. 

The Council shall consist of 25 voting members 
who shall be appointed by the Governor as fol- 
lows: 

(a) Five representatives of the film industry 
within the state representing acting, production, 
directing, producing, and film studio management. 

(b) Five representatives of business and 
industry. 

(c) Three representatives of state or local 
government. 

(d) Twelve at-large members. 

Section 4. Terms of Membership. 

The terms of membership of the Council shall be 
staggered so that the terms of approximately one- 
third of the members shall expire in a single 
calendar year. Eight members shall be designated 
to serve initial terms of one year, eight to serve 
initial terms of two years and nine members to 
serve initial terms of three years. After the first 
three years, all members shall be appointed for a 
term of three years. 

Section 5. Vacancies. 

A vacancy occurring during a term of appoint- 
ment is filled in the same manner as the original 
appointment and for the balance of the unexpired 
term. 

Section 6. Travel Expenses. 

Members of the Council shall receive necessary 
travel and subsistence expenses, when available, 
from Department of Commerce funds, pursuant to 
N.C.G.S. 138-5. 

Section 7. Officers. 

The Chair and Vice Chair of the Council shall be 
appointed by the Governor. The term of office of 
the Chair and Vice Chair shall be two calendar 
years. The Council may elect other such officers 
as it deems necessary. 



413 



9:7 



NORTH CAROLINA REGISTER 



July 1, 1994 



EXECUTIVE ORDERS 



Section 8. Meetings. 

The Council shall meet at least three times yearly 
and at other times at the call of the Chair or upon 
written request of at least ten of its members. 

Section 9. Staff Assistance. 

The Department of Commerce shall provide 
clerical support and other services required by the 
Council. 

This Executive Order shall be effective immedi- 
ately. 

Done in the Capital City of Raleigh, North 
Carolina, this the 10th day of June, 1994. 

EXECUTIVE ORDER NO. 52 

AMENDING EXECUTIVE ORDER 

NUMBER 9 CONCERNING THE 

COMMISSION FOR A COMPETITIVE 

NORTH CAROLINA 

By the authority vested in me as Governor by the 
laws and Constitution of North Carolina, IT IS 
ORDERED: 

Section 2 of Executive Order Number 9 is 
hereby amended to read: 

Section 2. Membership. 

The Commission shall consist of up to 55 mem- 
bers appointed by the Governor. The membership 
may include representatives of the private sector, 
the nonprofit sector, local government, and the 
North Carolina General Assembly. 

Section 3. Effect on Other Executive Orders. 

Executive Order Number 40, dated March 21, 
1994 is hereby rescinded. 

This Executive Order shall be effective immedi- 
ately. 

Done in Raleigh, North Carolina, this the 10th 
day of June, 1994. 



9:7 NORTH CAROLINA REGISTER July 1, 1994 414 



IN ADDITION 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



BEFORE THE TAX REVIEW BOARD 



In the matter of: 

The Proposed Assessment of installment paper dealer 
tax against Ford Motor Credit Company for the 
period 1 October 1986 through 30 June 1989. 



ADMINISTRATIVE 
DECISION NUMBER: 



282 



THIS MATTER was heard before the undersigned duly appointed and acting members of the Tax 
Review Board at its regular meeting in the City of Raleigh on 24 March 1994, upon the petition of Ford 
Motor Credit Company for review of a Final Decision of the Deputy Secretary of Revenue entered 27 
August 1992 sustaining a proposed assessment of installment paper dealer tax for the period 1 October 1986 
through 30 June 1989; 

AND IT APPEARING TO THE BOARD that the findings of fact made by the Deputy Secretary of 
Revenue were fully supported by competent evidence of record, that the conclusions of law made by the 
Deputy Secretary were fully supported by the findings of fact, and that the decision by the Deputy Secretary 
was fully supported by the conclusions of law; 

IT IS THEREFORE ORDERED that the Final Decision of the Deputy Secretary of Revenue is 
confirmed in every respect. 

Entered this the 14th day of June, 1994. 



TAX REVIEW BOARD 



Harlan E. Boyles, Chairman 
State Treasurer 



Jeff D. Batts 



Note: Dr. John E. Thomas, Chairman of the Utilities Commission on the date of the hearing in this matter, 
participated in the hearing but did not participate in the Board's subsequent decision because, as of the date 
of the meeting at which this matter was decided, he no longer held the office of Chairman of the Utilities 
Commission and therefore was no longer an ex officio member of the Tax Review Board. 



415 



9:7 



NORTH CAROLINA REGISTER 



July 1, 1994 



IN ADDITION 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



In the matter of: 

The Proposed Assessment of additional sales and 

use tax for the period 1 February 1987 through 31 

January 1990 by the Secretary of Revenue of North 

Carolina against Advanced Micrographic Support, 

Inc. 



BEFORE THE TAX REVIEW BOARD 



ADMINISTRATIVE 
DECISION NUMBER: 283 



THIS MATTER was heard before the undersigned duly appointed and acting members of the Tax 
Review Board (and before Dr. John E. Thomas, at that time Chairman of the Utilities Commission and ex 
officio member of the Board) at its regular meeting in the City of Raleigh on 21 December 1993, upon the 
petition of Advanced Micrographic Support, Inc. [hereinafter "Petitioner"] for review of a Final Decision 
of the Deputy Secretary of Revenue issued 4 March 1992 waiving the negligence penalty and sustaining a 
proposed assessment of additional sales and use tax for the period 1 February 1987 through 31 January 1990. 

Findings of Fact 

THE TAX REVIEW BOARD, having reviewed the Petition, briefs, and record filed in this matter, 
adopts the Findings of Fact contained in the Final Decision of the Deputy Secretary in this matter and makes 
the following additional Findings of Fact: 

1 . The Petitioner is engaged in the business of providing services to its customers in the form 
of consulting, developing software programs, formatting and imaging, and data processing. 
The Petitioner's primary service consists of processing raw data from its customers in order 
to put this data into a more useful format. 

2. Most of the services provided by the Petitioner are in the nature of data processing. The 
Petitioner delivers the results of its services to its customers through storage media; however, 
the delivery of storage media is merely a means by which the results of the Petitioner's 
services are delivered. 

3. The Petitioner's charges to its customers are charges for services, not sales of tangible 
personal property. 

Conclusions of Law 

THE TAX REVIEW BOARD, having reviewed the Petition, briefs, and record filed in this matter, 
based on the Findings of Fact made by the Deputy Secretary and on its own Findings of Fact set out above, 
makes the following Conclusions of Law: 

1 . At all material times the Petitioner was engaged in the business of providing data processing 
services to its customers. The Petitioner delivered the results of its services to its customers 
by means of storage media. 

2. The total charges to Petitioner's customers at issue herein were charges for services such as 
organizing, preparing, programming, filming, and processing customer data. No portion of 
the charges at issue represent sales of tangible personal property subject to North Carolina 
sales and use tax. 



9:7 NORTH CAROLINA REGISTER July 1, 1994 416 



IN ADDITION 



Decision 

IT APPEARING TO THE BOARD, as set forth above, that the Petitioner is engaged in the business 
of providing data processing services to its customers; and it further appearing that no part of the charges at 
issue were charges for sales of tangible personal property; 

IT IS THEREFORE ORDERED that the proposed assessment of additional sales and use tax against 
the Petitioner is Reversed. 

Entered this the 14th day of June, 1994. 



TAX REVIEW BOARD 



Harlan E. Boyles, Chairman 
State Treasurer 



Jeff D. Batts 



Note: Dr. John E. Thomas, Chairman of the Utilities Commission on the date of the hearing in this matter, 
participated in the hearing but did not participate in the Board's subsequent decision because, as of the date 
of the meeting at which this matter was decided, he no longer held the office of Chairman of the Utilities 
Commission and therefore was no longer an ex officio member of the Tax Review Board. 



417 9:7 NORTH CAROLINA REGISTER July 1, 1994 



IN ADDITION 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



BEFORE THE TAX REVIEW BOARD 



) 
In the matter of: ) 

The Proposed Assessment of additional sales and ) 

use tax for the period 1 February 1988 through 31 ) ADMINISTRATTVE 

March 1991 by the Secretary of Revenue of North ) DECISION NUMBER: 284 

Carolina against Performance Bicycle Shop, Inc. ) 

) 

THIS MATTER was heard before the undersigned duly appointed and acting members of the Tax 
Review Board (and before Dr. John E. Thomas, at that time Chairman of the Utilities Commission and ex 
officio member of the Board) at its regular meeting in the City of Raleigh on 24 March 1994, upon the 
petition of Performance Bicycle Shop, Inc. [hereinafter "Petitioner"] for review of a Final Decision of the 
Deputy Secretary of Revenue issued 4 January 1993 waiving the negligence penalty and sustaining a proposed 
assessment of additional sales and use tax for the period 1 February 1988 through 31 March 1991. 

Findings of Fact 

THE TAX REVIEW BOARD, having reviewed the Petition, briefs, and record filed in this matter, 
adopts the Findings of Fact contained in the Final Decision of the Deputy Secretary in this matter and makes 
the following additional Findings of Fact: 

1. The Petitioner is engaged in the sale of bicycles and bicycle accessories. 

2. The Petitioner operates a retail store in Carrboro, North Carolina. The Petitioner also 
operates, from its Carrboro, North Carolina location, an extensive catalog retail sales 
business. The customers of the catalog business are located in virtually every part of the 
United States, and perhaps in foreign countries. Some catalog customers are located in the 
State of North Carolina. 

3 . The vast majority of the Petitioner's catalogs are shipped directly from the Petitioner's printer 
in Spartanburg, South Carolina, to recipients, and are therefore not at issue. 

4. The matter before the Board concerns the application of North Carolina sales and use tax to 
catalogs which are shipped from the Spartanburg printer to the Petitioner's Carrboro business 
facilities. These catalogs are used by the Petitioner for three purposes: (1) package inserts - 
when the Petitioner mails a product to a customer, the Petitioner places a catalog in the box 
with the product in an effort to stimulate additional sales; (2) response to telephone requests 
for catalogs - when a potential customer calls the Petitioner to request a catalog, the 
Petitioner mails the catalog from its Carrboro facility; and (3) available to be given to 
customers who visit the Petitioner's retail facility in Carrboro. 

5. The Petitioner concedes (and the Board concurs) that all catalogs used for the third purpose 
in the preceding paragraph are properly subject to North Carolina sales and use tax. As to 
the first two purposes, the Petitioner agrees (and, again, the Board concurs) that all catalogs 
actually delivered to North Carolina residents are subject to North Carolina sales and use tax. 
However, North Carolina residents receive only a very small percentage of catalogs mailed 
out for these purposes. The critical question is the tax treatment of catalogs mailed to out-of- 
State customers and potential customers. 



9:7 NORTH CAROLINA REGISTER July 1, 1994 418 



IN ADDITION 



6. After carefully considering the nature of the Petitioner's business, the Board finds that the 
Petitioner consistently mails the vast majority of the catalogs falling into the first two 
categories above to customers or potential customers located in states other than North 
Carolina. When the Petitioner has catalogs delivered to its North Carolina location, the 
Petitioner has the original and continuing intent to deliver approximately 95% of these 
catalogs to customers and potential customers located out-of-state. 

7. The Petitioner sends catalogs falling into the first two categories above to out-of-state 
customers and potential customers free of charge, for the purpose of generating sales of 
bicycles and bicycle accessories. 

8. The percentage of catalogs shipped out-of-state from the Petitioner's North Carolina facility 
changed little during the years under consideration. The Petitioner typically stores catalogs 
for no more than two or three months, because the Petitioner prints five catalogs per year. 
It is reasonable for the Petitioner to anticipate, based on past experience, that the vast 
majority of catalogs stored in its North Carolina facility will be shipped out-of-state. 

Conclusions of Law 

THE TAX REVIEW BOARD, having reviewed the Petition, briefs, and record filed in this matter, 
based on the Findings of Fact made by the Deputy Secretary and on its own Findings of Fact set out above, 
makes the following Conclusions of Law: 

1 . All catalogs stored by the Petitioner in North Carolina and used for the purpose of direct 
distribution to customers of the Petitioner's retail store in Carrboro, North Carolina are 
subject to North Carolina sales and use tax. 

2. As to those catalogs stored by the Petitioner in North Carolina and used by the Petitioner 
either as package inserts or as mail-outs in response to telephone requests, all catalogs 
shipped to North Carolina recipients are subject to North Carolina sales and use tax. 

3. As to these catalogs stored by the Petitioner in North Carolina and used by the Petitioner 
either as package inserts or as mail-outs in response to telephone requests, catalogs actually 
shipped to out-of-state recipients fall within the "storage and use" exclusion (see G.S. 105- 
164.3(19)) and are not subject to North Carolina sales and use tax. The Board takes 
particular notice that the percentage of catalogs shipped out-of-state from the Petitioner's 
North Carolina facility changed little during the years under consideration. The Board 
therefore concludes as a matter of law that the Petitioner purchases catalogs for delivery to 
its North Carolina location with the original purpose of continuing its past business practice 
of sending most of these catalogs out-of-state. The burden is on the Petitioner, of course, 
to show how the catalogs received in its Carrboro location are actually used. 

4. Addressing one additional point raised by the Department, the Board concludes that catalogs 
shipped out-of-state by the Petitioner as package inserts or in response to telephone requests 
are used by the Petitioner in the states where the catalogs are received. The catalogs are 
promotional and advertising materials of the Petitioner, delivered by the Petitioner to past 
customers and potential future customers for the purpose of generating sales. Such delivery 
constitutes use of the catalogs by the Petitioner in other states. 

Decision 

IT APPEARING TO THE BOARD, as set forth above, that catalogs stored by the Petitioner at its 
North Carolina facility for shipment and use out-of-state and actually used out-of-state meet the "storage and 
use" exclusion; 



419 9:7 NORTH CAROLINA REGISTER July 1, 1994 



IN ADDITION 



IT IS THEREFORE ORDERED that the proposed assessment of additional sales and use tax against 
the Petitioner be revised to reflect the Findings and Conclusions of the Board set forth herein, and that the 
Final Decision of the Deputy Secretary in this matter is Modified accordingly. 



Entered this the 14th day of June, 1994. 



TAX REVIEW BOARD 



Harlan E. Boyles, Chairman 
State Treasurer 



Jeff D. Batts 



Note: Dr. John E. Thomas, Chairman of the Utilities Commission on the date of the hearing in this matter, 
participated in the hearing and in the Board's unanimous decision, but did not sign this order because, as of 
the date of entry of this written decision, he no longer held the office of Chairman of the Utilities Commission 
and therefore was no longer an ex officio member of the Tax Review Board. 



9:7 NORTH CAROLINA REGISTER July 1, 1994 420 



IN ADDITION 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



BEFORE THE TAX REVIEW BOARD 



In the matter of: 

The Denial of Refunds for the tax years 1979, 
1980, 1981, 1982, and 1983 by the Secretary of 
Revenue against Charles R. Brown. 



ADMINISTRATIVE 
DECISION NUMBER: 



285 



THIS MATTER was heard before the undersigned duly appointed and acting members of the Tax 
Review Board at its regular meeting in the City of Raleigh on 24 March 1994, upon the petition of Charles 
R. Brown for review of a Final Decision of the Deputy Secretary of Revenue entered 24 August 1992 denying 
requests for refunds of taxes, penalties, and interest for the tax years 1979, 1980, 1981, 1982, and 1983. 

Addressing first the Taxpayer's motion that this matter be remanded to the Secretary of Revenue, the 
Board finds that the Taxpayer has had ample opportunity, in two hearings before the Deputy Secretary of 
Revenue, to present any relevant and material evidence. The Taxpayer has not asserted the existence of 
relevant and material evidence which could not, with due diligence, have been presented at the hearing before 
the Deputy Secretary from which the Taxpayer has petitioned for review. The Taxpayer's motion for remand 
is therefore DENIED; 

AND IT APPEARING TO THE BOARD that the findings of fact made by the Deputy Secretary of 
Revenue were fully supported by competent evidence of record, that the conclusions of law made by the 
Deputy Secretary were fully supported by the findings of fact, and that the decision by the Deputy Secretary 
was fully supported by the conclusions of law; 

IT IS THEREFORE ORDERED that the Final Decision of the Deputy Secretary of Revenue is 

confirmed in every respect. 

Entered this the 14th day of June, 1994. 



TAX REVIEW BOARD 



Harlan E. Boyles, Chairman 
State Treasurer 



Jeff D. Batts 



Note: Dr. John E. Thomas, Chairman of the Utilities Commission on the date of the hearing in this matter, 
participated in the hearing and in the Board's unanimous decision, but did not sign this order because, as of 
the date of entry of this written decision, he no longer held the office of Chairman of the Utilities Commission 
and therefore was no longer an ex officio member of the Tax Review Board. 



421 



9:7 



NORTH CAROLINA REGISTER 



July 1, 1994 



IN ADDITION 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



BEFORE THE TAX REVIEW BOARD 



In the matter of: 

The Proposed Assessments of income tax withheld 

or required to be withheld for the months of May 

and June, 1989, by Secretary of Revenue of North 

Carolina against Morton B. Morgans tern, 

Taxpayer. 



ADMINISTRATIVE 
DECISION NUMBER: 



286 



THIS MATTER was heard before the undersigned duly appointed and acting members of the Tax 
Review Board at its regular meeting in the City of Raleigh on 24 March 1994, upon the petition of Morton 
B. Morganstern for review of a Final Decision of the Deputy Secretary of Revenue entered 26 June 1992 
sustaining proposed assessments of tax withheld or required to have been withheld for the months of May and 
June, 1989 and declaring said assessments to be immediately due and payable; 

AND IT APPEARING TO THE BOARD that the findings of fact made by the Deputy Secretary of 
Revenue were fully supported by competent evidence of record, that the conclusions of law made by the 
Deputy Secretary were fully supported by the findings of fact, and that the decision by the Deputy Secretary 
was fully supported by the conclusions of law; 

IT IS THEREFORE ORDERED that the Final Decision of the Deputy Secretary of Revenue is 
confirmed in every respect. 

Entered this the 14th day of June, 1994. 



TAX REVIEW BOARD 



Harlan E. Boyles, Chairman 
State Treasurer 



Jeff D. Batts 



Note: Dr. John E. Thomas, Chairman of the Utilities Commission on the date of the hearing in this matter, 
participated in the hearing and in the Board's unanimous decision, but did not sign this Order because, as of 
the date of entry of this written decision, he no longer held the office of Chairman of the Utilities Commission 
and was therefore no longer an ex officio member of the Tax Review Board. 



9:7 



NORTH CAROLINA REGISTER 



July 1, 1994 



422 



PROPOSED RULES 



TITLE 4 - DEPARTMENT OF 
COMMERCE 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Alcoholic 
Beverage Control Commission intends to adopt 
rule cited as 4 NCAC 2T .0103. 

1 he proposed effective date of this action is 
October 1, 1994. 

1 he public hearing will be conducted at 10:00 
a.m. on August 12, 1994 at the ABC Commission, 
Hearing Room 101, 3322 Garner Road, Raleigh, 
NC 27610. 

Ixeason for Proposed Action: Petition for adop- 
tion of rule received from N.C. Beer Wholesalers' 
Association. Purpose of Rule is to define term 
"brand" as used by malt beverage wholesale 
distribution industry, and to codify Commission's 
traditional interpretation of the term for the pur- 
pose of administering the Beer Franchise Law. 

(comment Procedures: Written comments should 
be received by the Commission no later than 
August 5, 1994. Persons may also present oral 
comments at the hearing on August 12, 1994. 
Persons wishing to speak at the hearing are re- 
quested to contact Ann S. Fulton, General Coun- 
sel, prior to the hearing, at (919) 779-0700 No 
written or verbal comment will be received or 
considered after the hearing on August 12, 1994. 



CHAPTER 2 - ALCOHOLIC 
BEVERAGE CONTROL COMMISSION 

SUBCHAPTER 2T - INDUSTRY MEMBERS: 
RETAIL/INDUSTRY: MEMBER 
RELATIONSHIPS: SHD? CHANDLERS: 
Am CARRD2RS: FUEL ALCOHOL 

SECTION .0100 - DEFINITIONS: 
APPLICATION PROCEDURES 

.0103 BEER FRANCHISE LAW; 
"BRAND" DEFINED 

For purposes of Article 13 of Chapter 18B. the 
Beer Franchise Law, a distribution agreement 
between a supplier and wholesaler applies to all 
products distributed by the supplier under the same 
brand name. Different categories of products 
manufactured and marketed under a common 
identifying trade name, such as the name of the 
brewery, are considered to be the same brand: 
e.g.. the "Old Faithful " brand would include "Old 
Faithful". "Old Faithful Light". "Old Faithful 
Draft". "Old Faithful Dry" and other products 
identified principally by and relying upon the "Old 
Faithful" name. Differences in packaging, such as 
different style, type or size of container, do not 
establish different brands. 

Statutory Authority G.S. 18B-207; 18B-1 303(a). 



TITLE 10 - DEPARTMENT OF HUMAN RESOURCES 

l\otice is hereby given in accordance with G.S. 150B-21.2 that the Division of Facility Services intends to 
amend rules cited as 10 NCAC 3R .3020, .3030. 

1 he proposed effective date of this action is October 1, 1994. 

1 he public hearing will be conducted at 10:00 a.m. on August 4, 1994 at the Council Building, Room 201, 
701 Barbour Drive, Raleigh, North Carolina 27603. 

Ixeason for Proposed Action: To adopt as permanent rules the temporary rule adopted June 7, 1994, which 
amends the Certificate of Need review schedule and the facility and service need determinations set forth in 
the 1994 State Medical Facilities Plan. 



423 



9:7 



NORTH CAROLINA REGISTER 



July 1, 1994 



PROPOSED RULES 



Ksomment Procedures: All written comments must be submitted to Jackie Sheppard, APA Coordinator, 
Division of Facility Services, P.O. Box 29530, Raleigh, NC 276264530 no later than August 4, 1994. Oral 
comments may be made at the hearing. 

h/ditor's Note: These Rules were filed as temporary amendments effective June 7, 1994 for a period of 
180 days or until the permanent rule becomes effective, whichever is sooner. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3R - CERTIFICATE OF NEED REGULATIONS 

SECTION .3000 - STATE MEDICAL FACILITIES PLAN 

.3020 CERTIFICATE OF NEED REVffiW SCHEDULE 

The agency has established the following schedule for review of categories and subcategories of facilities 
and services in 1994: 
(1) Category B. Subcategory Long-Term Nursing Facilities. 







CON Beginning 


County 


HSA 


Review Date 


Brunswick 


V 


April 1, 1994 


Pender 


V 


April 1, 1994 


Greene 


VI 


April 1, 1994 


Lincoln 


III 


September 1, 1994 



(2) Category C. Subcategory Intermediate Care Facilities for Mentally Retarded. 









CON Beginning 


Counties 




HSA 


Review Date 


Buncombe, Madison, Mitchell 


Yancey 


I 


June 1, 1994 


Gaston, Lincoln 




III 


November 1, 1994 


Rowan, Iredell, Davie 




III 


May 1, 1994 


Orange, Person, Chatham 




IV 


May 1, 1994 


Halifax 




VI 


December 1, 1994 


Pitt 




VI 


December 1, 1994 


Beaufort, Washington, Tyrrell, 


Hyde, Martin 


VI 


June 1, 1994 


Pasquotank, Chowan, Perquimans, Camden, 
Dare, Currituck 


VI 


June 1, 1994 



(3) Category D. Subcategory End Stage Renal Disease Dialysis Stations. Dialysis station review shall 
be conducted under the provisions of 10 NCAC 3R .3032. 

(4) Category H. Subcategory Home Health Agencies or Offices. 



NORTH CAROLINA REGISTER 



July 1, 1994 



424 



PROPOSED RULES 



County 


HSA 


CON Beginning 
Review Date 


Iredell 


III 


July 1, 1994 


Mecklenburg 


III 


February 1, 1994 


Durham 


IV 


February 1, 1994 


Cumberland 


V 


February 1, 1994 



(5) If a need has been identified for any health service or facility in 10 NCAC 3R .3030, applications 
for certificates of need for those services will be reviewed pursuant to the following review schedule, 
unless another schedule has been specified in Items (1) - (4) of this Rule. 



CON 

BEGINNING 
REVIEW 
DATE 


HSA I 


HSA n 


HSAIJJ 


HSAIV 


HSA V 


HSA VI 


January 1 


- 


- 


- 


- 


- 


- 


February 1 


B, G, I 


B, G, I 


A, G, E, H, I, J, 
K 


A, G, E, H, I, J, 
K 


A, G, E, H, I, J, 
K 


A, G, E, H, 
K 


March 1 


- 


- 


B, G 


B, G 


- 


- 


April 1 


A, G, E, H, J, K 


A, G, E, H, J, K 


- 


- 


B, G 


B, G 


May 1 


- 


- 


C, G, F 


C, G, F 


- 


- 


June 1 


A, C, G, F, D, 
J, K 


A, C, G, F, D, 
J, K 


D 


D 


A, C, G, F, D, 
J, K 


A, C, G, F, 1 
I K 


July 1 


- 


- 


A, G, H, J, K 


A, G, H, J, K 


- 


- 


August 1 


B, G, L 


B, G, L 


- 


- 


G, E, H 


G, E, H 


September 1 


- 


- 


B, G, E, L 


B, G, E, L 


- 


- 


October 1 


G, E, H 


G, E, H 


- 


- 


B, G, L 


B, G, L 


November 1 


- 


A, C, G, F, J, K 


A, C. G, F, J, K 


A, C, G, F, J, K 


- 


- 


December 1 


A, C, D, G, F, 
J, K 


D 


D 


D 


A, C, D, G, F, 
J,K 


A, C, D, G, 
J, K 



Statutory Authority G.S. 1 31 E-l 76(25); 131E-177(1); 1 31 E-l 83(b). 



.3030 FACILITY AND SERVICE NEED DETERMINATIONS 

Facility and service need determinations are shown in Items (1) - (16) of this Rule. The need determinations 
shall be revised continuously throughout 1994 pursuant to 10 NCAC 3R .3040. 

(1) Category A. Acute Health Service Facilities. It is determined that there is no need for additional 
acute care beds and no reviews are scheduled. 

(2) Category B. Long-Term Nursing Facility Beds. 







Number of Nursing 


County 


HSA 


Beds Needed 


Brunswick 


V 


40 


Pender 


V 


20 


Greene 


VI 


10 



425 



9:7 



NORTH CAROLINA REGISTER 



July 1, 1994 



PROPOSED RULES 



County 



HSA 



Number of Nursing 
Beds Needed 



Lincoln 



III 



30 



(3) Category C. 

(a) Psychiatric Facility Beds. It is determined that there is no need for additional psychiatric beds and 
no reviews are scheduled. 

(b) Intermediate Care Facilities for Mentally Retarded Beds. 



Counties 


HSA 




Need 








Determination 






Child 




Adult 


Buncombe, Madison, Mitchell, Yancey 


I 







6 


Gaston, Lincoln 


III 







6 


Rowan, Iredell, Davie 


III 


12 







Orange, Person, Chatham 


IV 


6 







Halifax 


VI 


12 







Pitt 


VI 


12 







Beaufort, Washington, Tyrrell, Hyde, 
Martin 


VI 


6 




6 


Pasquotank, Chowan, Perquimans, 
Camden, Dare, Currituck 


VI 







18 



(c) Chemical Dependency Treatment Beds. It is determined that there is no need for additional 
chemical dependency treatment beds and no reviews are scheduled. 

(4) Category D. End-Stage Renal Disease Treatment Facilities. Need for end-stage renal dialysis 
facilities or stations is determined as is provided in 10 NCAC 3R .3032. 

(5) Category E. Inpatient Rehabilitation Facility Beds. It is determined that there is no need for 
additional rehabilitation beds and no reviews are scheduled. 

(6) Category F. Ambulatory Surgery Operating Rooms. It is determined that there is no need for 
additional ambulatory surgery operating rooms and no reviews are scheduled, except that a Rural 
Primary Care Hospital designated by the N.C. Office of Rural Health Services pursuant to Section 
1820(f) of the Social Security Act may apply for a certificate of need to convert existing operating 
rooms for use as a freestanding ambulatory surgical facility. 

(7) Category H. New Home Health Agencies or Offices. 







Number of Agencies 


County 


HSA 


or Offices Needed 


Iredell 


III 


1 


Mecklenburg 


III 


2 


Durham 


IV 


1 


Cumberland 


V 


1 



(8) Category J. Open heart surgery services. It is determined that there is no need for additional open 



NORTH CAROLINA REGISTER 



July 1, 1994 



426 



PROPOSED RULES 



(9) 



(10) 



(ID 



(12) 
(13) 



(14) 
(15) 



(16) 
(a) 



heart surgery services and no reviews are scheduled; except that a health service facility that 
currently provides these services may apply for a certificate of need to expand its existing services 
to meet specific needs if utilization of the health service facility's existing open heart surgery services 
exceeds 80 % of capacity. 

Category J. Heart-Lung Bypass Machines. It is determined that there is no need for additional 
heart-lung bypass machines and no reviews are scheduled; except that a health service facility that 
currently provides open heart surgery services may apply for a certificate of need to acquire 
additional heart-lung bypass machinery if the existing heart-lung machinery used by the health service 
facility is utilized at or above 80% of capacity. 

Category J. Cardiac Angioplasty Equipment. It is determined that there is no need for additional 
cardiac angioplasty equipment and no reviews are scheduled; except that a health service facility that 
currently provides cardiac angioplasty services may apply for a certificate of need to acquire 
additional cardiac angioplasty equipment if utilization of cardiac angioplasty equipment used by the 
health service facility exceeds 80% of capacity. 

Category J. Cardiac Catheterization Equipment. It is determined that there is no need for additional 
fixed or mobile cardiac catheterization equipment and no reviews are scheduled; except that a health 
service facility that currently provides cardiac catheterization services may apply for a certificate of 
need to acquire additional cardiac catheterization equipment if utilization of cardiac catheterization 
equipment used by the health service facility exceeds 80% of capacity. 

Category J. Solid organ transplant services shall be developed and offered only by academic medical 
center teaching hospitals as designated in 10 NCAC 3R .3050(a)(3). It is determined that there is 
no need for new solid organ transplant services and no reviews are scheduled. 
Category J. Bone Marrow Transplantation Services. It is determined that allogeneic bone marrow 
transplantation services shall be developed and offered only by academic medical center teaching 
hospitals as designated in 10 NCAC 3R .3050(a)(3). It is determined that there is no need for 
additional allogeneic or autologous bone marrow transplantation services and no reviews are 
scheduled. 

Category J. Gamma Knife Equipment. It is determined that there is no need for gamma knife 
equipment and no reviews are scheduled. 

Category J. Positron Emission Tomography Scanner. It is determined that there is no need for 
additional positron emission tomography scanners for purposes other than research and no reviews 
are scheduled. 
Category L. 
New Hospice Home Care Programs. 







Number of New 






Hospice Home Care 


County 


HSA 


Programs Needed 


Graham 


I 




McDowell 


I 




Swain 


I 




Cumberland 


V 




Robeson 


V 




Edgecombe 


VI 




Hyde 


VI 




Onslow 


VI 




Wayne 


VI 





(b) New Hospice Inpatient Beds (Single Counties). It is determined that the following single counties 



427 



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NORTH CAROLINA REGISTER 



July 1, 1994 



PROPOSED RULES 



have a need for six or more new Hospice Inpatient Beds: 



County 



HSA 



Number of New 

Hospice Inpatient 

Beds Needed 



Forsyth 
Guilford 

Wake 



II 
H 
IV 



8 

7 
1 



(c) New Hospice Inpatient Beds (Contiguous Counties). It has been determined that any combination 
of two or more contiguous counties taken from the following list shall have a need for new hospice 
inpatient beds if the combined bed deficit for the grouping of contiguous counties totals six or more 
beds. Each county in a grouping of contiguous counties must have a deficit of at least one and no 
more than five beds. The need for the grouping of contiguous counties shall be the sum of the 
deficits in the individual counties. For purposes of this rule, "contiguous counties" shall mean a 
grouping of North Carolina counties which includes the county in which the new hospice inpatient 
facility is proposed to be located and any one or more of the immediately surrounding North 
Carolina counties which have a common border with that county, even if the borders only touch 
at one point. No county may be included in a grouping of contiguous counties unless it is listed 
in the following table: 



County 


HSA 


Hospice Inpatient 
Bed Deficit 


Alexander 






1 


Ashe 






1 


Avery 






1 


Buncombe 






4- 


Burke 






1 


Cleveland 






i 








4 

1 


Madison 






Polk 






1 


Rutherford 






2 


Transylvania 






1 


Watauga 






1 


Wilkes 






1 


Yancey 






1 


Alamance 


II 




5 


Caswell 


II 




1 


Davidson 


II 




2 


Guilford 


u 




1 



NORTH CAROLINA REGISTER 



July 1, 1994 



428 



PROPOSED RULES 



County 


HSA 


Hospice Inpatient 
Bed Deficit 




B 


4 


lUUluUipil 


Rockingham 


II 


3 


Stokes 


11 


1 


Surry 


II 


2 


Cabarrus 


III 


2 


Gaston 


III 


4 


Iredell 


III 


3 


Mecklenburg 


III 


4 


Rowan 


III 


3 


Stanly 


III 


1 


Union 


III 


2 


Chatham 


IV 


2 


Durham 


IV 


3 


Johnston 


IV 


1 


Lee 


IV 


1 




w 


4- 




Bladen 


V 


1 


Brunswick 


V 


2 


Columbus 


V 


2 


Harnett 


V 


1 


Moore 


V 


2 


New Hanover 


V 


i 


Pender 


V 


1 


Richmond 


V 


1 


Scotland 


V 


1 


Bertie 


VI 


2 


Duplin 


VI 


1 


Greene 


VI 


2 


Hertford 


VI 


2 


Nash 


VI 


1 


Northampton 


VI 


1 


Onslow 


VI 


1 


Pitt 


VI 


1 



429 



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NORTH CAROLINA REGISTER 



July 1, 1994 



PROPOSED RULES 



County 



HSA 



Hospice Inpatient 
Bed Deficit 



Wayne 
Wilson 



V4 

VI 



I 

1 



Statutory Authority G.S. 131E-176(25); 131E-177(1); 131E-1 83(b). 



****************** 

Notice is hereby given in accordance with G.S. 
150B-2 1.2 that the Commission for Mental Health, 
Developmental Disabilities & Substance Abuse 
Services intends to amend rules cited as 10 NCAC 
14K .0314 - .0315. 

lhe proposed effective date of this action is 
October 1, 1994. 

lhe public hearing will be conducted at 1:30 
p.m. on August 9, 1994 at the Sheraton Inn Ra- 
leigh at Crabtree Valley, 4501 Creedmoor Road, 
U.S. 70 Vkst, Raleigh, N.C. 27612. 

Ixeason for Proposed Action: Amend to comply 
with federal early intervention regulations (34 CFR 
Part 303). During the review of North Carolina 's 
annual grant for early intervention funds under 
PL. 99-457, the U.S. Department of Education 
determined that specific requirements must be 
included in these Rules in order to receive federal 
funds. 

Ksomment Procedures: Any interested person may 
present comments by oral presentations or submit- 
ting a written statement. Persons wishing to make 
oral presentation should contact Charlotte Tucker, 
Division of MH/DD/SAS, 325 N. Salisbury St. , 
Raleigh, N.C. 27603, 919-733-4774. Comments 
submitted as a written statement must be sent to 
the above address no later than August 8, 1994, 
and must state the Rule to which the comments are 
addressed. Time limits for oral remarks may be 
imposed. Fiscal information regarding these Rules 
is available from the Division, upon request. 

CHAPTER 14 - MENTAL 
HEALTH: GENERAL 

SUBCHAPTER 14K - CORE 
LICENSURE RULES FOR 



MENTAL HEALTH: MENTAL 

RETARDATION AND OTHER 

DEVELOPMENTAL DISABILITIES: 

AND SUBSTANCE ABUSE FACDHTffiS 

SECTION .0300 - FACILITY AND 
PROGRAM MANAGEMENT 

.0314 ASSESSMENT 

(a) The governing body shall develop and 
implement written policies regarding admission 
assessments for clients in each facility. 

(b) Each facility shall complete an initial admis- 
sion assessment for each client prior to the deliv- 
ery of treatment/habilitation services. The initial 
assessment shall include: 

(1) the presenting problem or reason for 
admission; 

(2) the client's needs and strengths, and 
when appropriate, the needs and 
strengths of family members who may 
contribute to the services provided to 
the client; 

(3) a provisional or admitting diagnosis 
with an established diagnosis deter- 
mined within 30 days of admission, 
except for clients admitted to a detoxifi- 
cation or other 24-hour medical pro- 
gram for any length of time, who shall 
have an established diagnosis upon 
admission; 

(4) a description of current status including 
the following, when applicable: 

(A) mental status, including suicide poten- 
tial; 

(B) developmental condition or impair- 
ment; 

(C) substance use or abuse; 

(D) legal status or circumstances; 

(E) medical condition; and 

(F) family and other support systems; 

(5) a description of the client's condition 
from family or significant others, when 
available; and 

(6) the disposition, including referrals and 
recommendations. 



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July 1, 1994 



430 



PROPOSED RULES 



(c) Data gathered during a screening or from 
other sources within 30 days prior to admission 
may be used to complete the assessment. 

(d) For a client expected to receive services for 
more than 30 days, the admission assessment shall 
include the following within 30 days of admission: 

(1) a social and family history; 

(2) a medical history; and 

(3) when applicable, histories and assess- 
ments as follows: 

(A) psychiatric, including previous treat- 
ment; 

(B) substance abuse, including previous 
treatment; 

(C) developmental, including previous 
services received; 

(D) educational; 

(E) auditory and visual; 

(F) nutritional; and 

(G) vocational. 

(e) For all facilities serving infants and toddlers 
with or at risk for developmental disabilities, 
delays or atypical development, except for respite, 
there shall be: 

(1) an assessment of levels of physical, 
(including vision and hearing), commu- 
nication, cognitive, social and emotion- 
al and adaptive skills development 
which is based on professionally accept- 
ed objective criteria ; 

(2) a determination of the child's unique 
strengths and needs in terms of these 
areas of development and identification 
of services appropriate to meet those 
needs; 

(3) if requested by the family, a determina- 
tion of the resources, priorities and 
concerns of the family, and the supports 
and services necessary to enhance the 
family's capacity to meet the develop- 
mental needs of their infant or toddler 
with or at risk for a disability. The 
family-focused and directed assessment 
is conducted by personnel trained to use 
the appropriate methods and procedures 
and shall be based on information pro- 
vided through a personal interview and 
incorporate the family's description of 
these resources, priorities, and concerns 
in this area; 

(4) procedures developed and implemented 
to ensure participation by the client's 
family or the legally responsible per- 
son; 

(5) tests and other evaluation materials and 



procedures administered in the native 
language of the parents or other mode 
of communication unless it is clearly 
not feasible to do so; 

(6) assessment procedures and materials 
which are selected and administered so 
as not to be racially or culturally dis- 
criminatory; 

(7) no single procedure used as the sole 
criterion for determining a child's 
eligibility; 

(8) an integrated assessment process which 
involves at least two persons, each 
representing a different discipline or 
profession, with the specific number 
and types of disciplines based on the 
particular needs of the child: 

(A) The assessment shall include current 
medical information provided by a 
physician, physician's assistant, or 
nurse practitioner; however, a physi- 
cian, physician's assistant, or nurse 
practitioner is not required as one of 
the disciplines involved in the assess- 
ment; and 

(B) Further information regarding the 
assessment may be found in the docu- 
ment "Eligibility Determination for 
the Infants-Toddler Program", pub- 
lished by the Department of Environ- 
ment, Health, and Natural Resources; 

(9) an evaluation process based on in- 
formed clinical opinion; 

(10) an assessment process completed within 
45 calendar days from the date of refer- 
ral. The referral is initiated by a writ 
ten request for these services made to 
any one of the public agencies partici- 
pating in the PL 99-457 Interagency 
Agreement. The request becomes a 
referral when the area program deter- 
mines that all of the following is avail- 
able: 
(A) — the family's written con s ent to receive 
this service; 

(A) {B) sufficient background information 
to enable the agency receiving the 
referral to establish communication 
through a telephone call or home 
visit; 

(B) {€) reason for referral, date of refer- 
ral and agency or individual making 
referral; 

(C) {©) child and family identifying infor- 
mation such as names, child's birth- 



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PROPOSED RULES 



date and primary physician; and 
CD) {E) summary of any pre-existing child 
and family screening or assessment 
information; 

(11) a 45 calendar day completion require- 
ment which may be extended in excep- 
tional circumstances, such as, the 
child's health assessment is being 
completed out-of-state, or family 
desires make it impossible to complete 
the assessment within the time period. 
The specific nature and duration of 
these circumstances which prevent 
completion within 45 days and the 
attempts made by the provider to 
complete the assessment shall be 
documented and an interim IFSP shall 
be developed and implemented : and 

(12) the child's family or legally responsible 
person shall be fully informed of the 
results of the assessment process. 

Statutory Authority G.S. 122C-26; 130A-144; 
130A-152; 143B-147. 

.0315 TREATMENT/HABILITATION 
PLANNING AND 
DOCUMENTATION 

(a) The governing body shall develop and 
implement written policies regarding individual 
treatment/habilitation plans and the qualifications 
of staff, based on education and experience, who 
will be responsible for implementation of such 
plans. 

(b) A treatment/habilitation plan shall be based 
upon an assessment of the client's condition, assets 
and needs, and the resources to meet these needs, 
and shall be developed in partnership with the 
:lient. 

(c) The parent or the legally responsible person 
Df a minor shall have the opportunity to participate 
n the development and implementation of the 
minor client's individual treatment/ habilitation 
plan. 

(d) The parent, with client consent, or the 
egally responsible person of an adult shall have 
he opportunity to participate in the development 
and implementation of the adult client's individual 
reatment/habilitation plan. 

(e) Clinical responsibility for the development 
and implementation of the treatment/habilitation 
plan shall be designated. 

(f) Initial treatment/habilitation objectives shall 
3e documented, if services are to be provided, 
prior to the establishment and implementation of 



the comprehensive treatment/habilitation plan. 

(g) Except as provided in Paragraphs (h) 
through (j) of this Rule, a comprehensive plan 
shall be developed and initiated within 30 days of 
admission for clients who are expected to receive 
services from the facility beyond 30 days. The 
plan shall include, as appropriate to the client's 
needs: 

(1) documentation of the established 
diagnosis; 

(2) time-specific, measurable goals for 
treatment/habilitation; 

(3) general strategies or procedures to be 
undertaken in order to meet goals and 
the direct care staff responsible for 
implementation; 

(4) time-specific, measurable education or 
treatment goals for family or significant 
others, if applicable; and 

(5) a schedule for time-specific planned 
reviews, which may be set, in addition 
to those required in Paragraph (k) of 
this Rule. 

(h) For all facilities serving infants and toddlers 

with or at risk for developmental disabilities, 

delays or atypical development, except for respite: 

(1) there shall be a habilitation plan which 

is referred to as the Individualized 

Family Service Plan (IFSP) which shall 

include: 

(A) a description of the child's present 
health status and levels of physical 
(including vision and hearing), 
communication, cognitive, social and 
emotional, and adaptive development; 

(B) with the concurrence of the family, a 
description of the resources, priorities 
and concerns of the family and the 
supports and services necessary to 
enhance the family's capacity to meet 
the developmental needs of their 
infant and toddler with or at risk for 
a disability; 

(C) goals for the child, and, if requested, 
goals for the child's family; 

(D) criteria and time frames to be used to 
determine progress towards goals; 

(E) planned habilitation procedures related 
to the goals; 

(F) a statement of the specific early 
intervention services to be provided to 
meet the identified child and family 
needs, the initiation dates, frequency 
and method, duration, intensity and 
location (including the most natural 



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432 



PROPOSED RULES 



environment) of service delivery, and 
the persons or agencies responsible; 

(G) the name of the service coordinator 
from the profession most immediately 
relevant to the needs of the child or 
family; and who is otherwise qualified 
to carry out all applicable 
responsibilities for coordinating with 
other agencies and individuals the 
implementation of the IFSP; 

(H) the plans for transition into services 
which are the responsibility of the 
N.C. Department of Public 
Instruction, or other available 
services, when applicable; 

(I) the payment arrangements for the 
specific services delineated in 
Subparagraph (h)(1)(F) of this Rule; 

(J) a description of medical and other 
services needed by the child, but 
which are not required under P.L. 
99-457, and the strategies to be 
pursued to secure those services 
through public or private resources. 
The requirement regarding medical 
services does not apply to routine 
medical services, such as 
immunization and well-baby care, 
unless the child needs these services 
and they are not otherwise available. 

(2) The IFSP shall be: 

(A) reviewed on at least a semi-annual 
basis or more frequently upon the 
family's request; and 

(B) revised as appropriate, but at least 
annually. 

(3) The initial development and annual 
revision process for the IFSP for infants 
and toddlers shall include participation 
by: 

(A) the parent or parents of the child; 

(B) other family members, as requested 
by the parent; 

(C) an advocate or person outside of the 
family if the parent requests that the 
person participate; 

(D) the provider of the early intervention 
services; 

(E) the service coordinator designated for 
the family, if different from the 
provider of the early intervention 
services; and 

(F) the provider of the assessment 
service, if different from the provider 
of the early intervention services. 



(4) The initial IFSP meeting and annual 
review reviews shall be arranged and 
written notice provided to families early 
enough to promote maximum 
opportunities for attendance. The 
semi-annual review process shall 
include participation by persons 
identified in Subparagraphs (h)(3)(A) 
through (E) of this Rule. If any of 
these individuals assessment and 
intervention providers are unable to 
attend one of the development or 
review meetings, arrangements shall be 
made for the person's involvement 
through other means such as 
participation in a telephone conference 
call, having a knowledgeable authorized 
representative attend the meeting or 
making pertinent records available at 
the meeting. Other a pproaches rather 
than meetings may be used if acceptable 
to the parents and other participants. 

(5) The IFSP for infants and toddlers is 
based upon the results of the assessment 
referenced in 10 NCAC 14K .0314(e) 
and upon information from any ongoing 
assessment of the child and family . 
However, early intervention services 
may commence before completion of 
this assessment if: 

(A) parental consent is obtained; and 

(B) the assessment is completed within the 
45-day time period referenced in 10 
NCAC 14K .0314(e). 

(6) In the event that exceptional 
circumstances, such as child illness, 
residence change of family, or any 
other similar emergency, make it 
impossible to complete the assessment 
within the 45-day time period 
referenced in 10 NCAC 14K .0314(e), 
the circumstances shall be documented 
and an interim IFSP developed with 
parent permission . The interim IFSP 
shall include: 

(A) the name of the service coordinator 
who will be responsible for the 
implementation of the IFSP and 
coordination with other agencies and 
individuals; 

(B) goals for the child and family when 
recommended; 

(C) those early intervention services that 
are needed immediately; and 

(D) suggested activities that may be 



433 



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PROPOSED RULES 



carried out by the family members. 

(7) Each facility or individual who has a 
direct role in the provision of early 
intervention services specified in the 
IFSP is responsible for making a good 
faith effort to assist each eligible child 
in achieving the goals set forth in the 
IFS. 

(8) The IFSP shall be developed within 45 
days of referral for those children 
determined to be eligible. The referral 
shall be as defined in 10 NCAC 14K 
.0314(e)(10). 

(9) The contents of the IFSP must be fully 
explained to the parents, and informed 
written consent from the parents must 
be obtained prior to the provision of 
early intervention services described in 
the plan. If the parents do not provide 
consent with respect to a particular 
early intervention service, or withdraw 
consent after first providing i^ that 
service may not be provided. The early 
intervention services for which parental 
consent is obtained must be provided. 

(10) IFSP meetings shall be conducted in 
settings convenient to and in the natural 
language of the family. 

(i) The goals for a client who receives services 
from facilities providing day activity or alternative 
family living, half-way house, therapeutic camp or 
group home services in which the supervision and 
therapeutic intervention are limited to sleeping 
time, home living skills and leisure time activities, 
may be limited to life-skill, social or recreational 
goals. 

(j) The goals for a client who receives services 
from a community respite facility may be limited 
to the special needs of the client, including 
medications to be administered, dietary 
considerations and expectations regarding other 
services. 

(k) A full review of each client's 

treatment/habilitation plan shall be conducted at 
least annually by the responsible professional in 
accordance with the facility's quality assurance 
plan, as determined by 10 NCAC 14K .0319. The 
review shall include: 

(1) the client's continuing need for service; 
and 

(2) a continuation or update of the client's 
treatment/habilitation plan as defined in 
Paragraph (g) of this Rule. 

Statutory Authority G.S. 122C-26; 143B-147. 



****************** 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Department of Human Resourc- 
es - Division of Vocational Rehabilitation Services 
intends to amend rules cited as 10 NCAC 20 A 
.0102; 20B .0203, .0206, .0224; 20C .0203, 
.0205, .0316; and adopt rules cited as 10 NCAC 
20C .0501 - .0502, .0601 - .0607. 

1 he proposed effective date of this action is 
October 1, 1994. 

1 he public hearing will be conducted at 7:00 
p.m. on July 18, 1994 at the Haywood Gymnasi- 
um, Division of Vocational Rehabilitation Services, 
805 Ruggles Drive, Dorothea Dix Campus, Ra- 
leigh, North Carolina. 

M\.eason for Proposed Action: 
10 NCAC 20A .0102 - To specify the State's 
definition of "individual with the most severe 
disability" and supplementary definitions as re- 
quired by Section 101(a)(5)(A) of the 1992 Amend- 
ments to the Rehabilitation Act of 1973. 
10 NCAC 20B .0203, .0206, .0224 - To bring the 
Division's administrative review/appeals rules into 
compliance with the provisions of Section 102(d) of 
PL. 102-569. 

10 NCAC 20C .0203 - To indicate that the Divi- 
sion will establish order of selection priority 
categories at the time eligibility is determined and 
to specify notification and documentation require- 
ments. 

10 NCAC 20C .0205 - To set a limit on the 
amount that can be paid for tuition to private 
proprietary trade and vocational schools. 
10 NCAC 20C .0316 - To specify the limits that 
are set for vehicle, residence and work site modifi- 
cations and to clarify that the Division will not 
purchase vehicles for clients. 
10 NCAC 20C .0501 - .0502 - To meet the re- 
quirements of Federal regulations (34 C.F.R. Part 
363) that all individuals eligible for supported 
employment services meet the State definition of 
"individuals with the most severe disabilities. " 
10 NCAC 20C .0601 - .0607 - To establish the 
Division's order of selection for services policy 
that is required under PL. 102-569 when states 
are not able to provide services to all eligible 
individuals who apply. 



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434 



PROPOSED RULES 



Csomment Procedures: Comments may be pre- 
sented orally or in writing at the hearing. Oral 
statements may be limited at the discretion of the 
hearing officer. Written comments may also be 
submitted until August 1, 1994 to Jackie Stalnaker, 
Division of \bcational Rehabilitation Sendees, 
P.O. Box 26053, Raleigh, NC 27611. To obtain 
additional information or indicate need for alterna- 
tive communication format contact Ms. Stalnaker 
in writing or by phone (919) 733-3364 or TDD 
(919) 733-5924. 

CHAPTER 20 - DIVISION OF 

VOCATIONAL REHABILITATION 

SERVICES 

SUBCHAPTER 20A - GENERAL 
INFORMATION 

SECTION .0100 - INFORMATION 
REGARDING RULES 

.0102 DEFINITIONS 

As used in this Chapter, the following terms 
have the meaning specified: 



£7} 



full or permanent remission. 
" Post-employment services" 



has the 



(1) 



(2) 



£21 

(a) 
fbl 

id} 

(ei 
UQ 

£4} 



151 



(6} 



"Division" means the Division of Voca- 
tional Rehabilitation Services of the 
Department of Human Resources. 
"Division Director" or "Director" means 
the Director of the Division of Vocational 
Rehabilitation Services. 
"Functional Capacity" means the ability 
to perform in the following areas: 

communication; 

interpersonal skills: 

mobility; 

self-care; 

self-direction; 

work skills; and 

work tolerance. 
"Individual with a severe disability" has 
the meaning specified in 34 C.F.R. 
361.5. 

"Individual with the most severe 
disability" means an individual with a 
severe disability whose impairment 
seriously limits three or more functional 
capacities in terms of an employment 
outcome. 

"Permanent disability" means any 
physical or mental condition which is 
expected to be lasting regardless of 
medical or psychological intervention, 
and which is highly unlikely to go into 



meaning specified in 34 C.F.R. 361.48. 
The Code of Federal Regulations adopted by 
reference in this Rule shall automatically include 
any later amendments thereto as allowed by. G.S. 
150B-21.6. Copies of the federal regulations so 
adopted may be obtained at no cost from the 
Division. 

Authority G.S. 143-545; 143-546; 150B-21.6; 34 
C.F.R. 361.5, 361.36, 361.48, and Part 363. 

SUBCHAPTER 20B - PROCEDURE 

SECTION .0200 - CONTESTED CASES: 

ADMINISTRATIVE REVIEWS: APPEALS 

HEARINGS 

.0203 REQUEST FOR ADMINISTRATIVE 
REVIEW AND APPEALS HEARING 

(a) When any applicant for or client receiving 
vocational rehabilitation services wishes to request 
an administrative review and/or an appeals 
hearing, the individual shall submit a written 
request to the appropriate regional director of the 
Division. 

(b) The request shall indicate if the individual is 
requesting: 

(1) an administrative review and an appeals 
hearing to be scheduled concurrently; 
or 

(2) only an appeals hearing. 

(c) The request shall contain the following 
information: 

(1) the name, address and telephone 
number of the applicant or client; and 

(2) a concise statement of the 
determination(s) made by the 
rehabilitation staff for which an 
administrative review and/or appeal are 
being requested and the manner in 
which the person's rights, duties or 
privileges have been affected by the 
determination(s) . 

fd) — If a client is requesting an ndminiatmtivc 
review and the issue to be reviewed concerns the 
denial of services already underway under the 
client's — individualized — written — rehabilitation 
program (TWRP) and the client wishes the disputed 
s ervices — to continue during the adminiatmtive 
review, the client shall indicate the desire to have 
the services — continued — in the request for on 
administrative review and submit the request pnof 
to the effective date of the change in the IWRR 



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PROPOSED RULES 



The Division ohall provide for the continuation of 
t he dioputcd service set forth in the client's IWRP 
during the administrative review for a period not 
t o exceed 30 calendar days from the proposed 
effective date of the change in the IWRP unless the 
disputed service is contraindioatcd on the basis of 
fflcdical/psychologieal information contained in th e 
individual's caoc record, in which case the servic e 
s hall not be continu e d. 

(d) The Division shall not suspend, reduce, or 
terminate services being provided to a client under 
an individualized written rehabilitation program 
(IWRP) pending final resolution of the issue 
through either an a ppeals hearing or an 
administrative review unless the individual or the 
individual's representative so requests, or the 
Division has evidence that the services have been 
obtained through misrepresentation. fraud, 
collusion, or criminal conduct on the part of the 
individual. 

Authority G.S. 143-546; 150B-1; P.L. 102-569. 

.0206 APPOINTMENT OF HEARING 
OFFICER 

Upon receipt of the applicant's or client's request 
for an appeals hearing from the regional director, 
the deputy director shall appoint arrange for the 
a ppointment of an impartial hearing officer who 
meets the criteria of is in the pool of persons 
qualified as defined in 34 C.F.R. 361.1(c)(2) 
361.5(b) to conduct a hearing and who is mutually 
agreed upon by the Director and the individual or 
the individual's representative . 

Authority G.S. 143-546; 150B-1; P.L. 102-569; 34 
CER. 361.5(b). 

.0224 DrVISION DIRECTOR'S REVIEW 
AND FINAL DECISION 

(a) The Division Director may review the 
hearing officer's decision and render the final 
decision. 

(b) The Division Director's decision to review 
the hearing officer's decision shall be based on the 
following standards of review: 

(1) Is the hearing officer's decision 
arbitrary, capricious, an abuse of 
discretion, or otherwise unreasonable? 

(2) Is the hearing officer's decision 
supported by substantial evidence, i.e., 
consistent with facts and applicable 
federal and state policy? 

(3) In reaching the decision, has the 
hearing officer given appropriate and 



adequate interpretation to such factors 
as: 

(A) the federal statute and regulations as 
they apply to specific issue(s) in 
question; 

(B) the state plan as it applies to the 
specific issue(s) in question; 

(C) division procedures as they apply to 
the specific issue(s) in question; 

(D) key portions of conflicting testimony; 

(E) division options in the delivery of 
services where such options are 
permissible under the federal statute; 

(F) restrictions in the federal statute with 
regard to such supportive services as 
maintenance and transportation; and 

(G) approved federal or division policy as 
it relates to the issue(s) in question. 

(c) If the Division Director decides to review 
the hearing officer's decision, the Director shall 
send the written notification and allow the 
submission of additional evidence as required by 
34 C.F.R. 361. 48 (c)(2)(iv)ond (vii) 361.57 . The 
written notification shall be given to the applicant 
or client personally or by certified mail. If given 
by certified mail, it shall be deemed to have been 
given on the delivery date appearing on the return 
receipt. 

(d) Upon a determination to review the hearing 
officer's decision, the Division Director shall make 
the final decision and provide the written report 
thereof as required by 34 C.F.R. 361. 48 (c)(2)(viii) 
and (ix) 361.57 . The division director shall not 
overturn or modify a decision, or part of a 
decision, of an impartial hearing officer that 
supports the position of the individual except as 
allowed under 34 C.F.R. 361.57(b)(9). The final 
decision shall be given to the applicant or client 
personally or by certified mail. If given by 
certified mail, it shall be deemed to have been 
given on the delivery date appearing on the return 
receipt. 

(e) The hearing officer's decision shall be the 
final decision under the conditions specified in 34 
C.F.R. 361. 4 8 (c)(2)(v) 361.57(b)(6) . 

(f) The Division Director shall forward a copy 
of the final decision, whether issued under (d) or 
(e) of this Rule, to the deputy director, the CAP 
director, the regional director, and the applicant's 
or client's representative, as appropriate. A copy 
shall also be included in the individual's official 
case record. 

Authority G.S. 143-546; 150B-1; P.L. 102-569, 
Section 102(d); 34 C.F.R. 361.57. 



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436 



PROPOSED RULES 



SUBCHAPTER 20C - PROGRAM RULES 

SECTION .0200 - ELIGIBILITY 

.0203 DETERMINATION OF ORDER OF 
SELECTION PRIORITY CATEGORY 

The Division shall follow the order of selection 
for services specified in the Three Year State Plan 
for Vocational Rehabilitation Services Under Title 
I of the Rehabilitation Act of 1973, as amen ded-; 
covering Fiscal Years 1989, 1990 and 1991. This 
adoption — by — reference — is — made — under — Gr-Sr 
150B 1 4 (c). 

(a) The Division shall provide written 
notification to all applicants for services at the time 
of application of either: 

(1) the existing order of selection, or 

(2) that an order of selection will be 
implemented if or when it is determined 
the Division has insufficient resources 
to serve all applicants who are 
determined eligible. 

£b) The Division shall determine each client's 
priority category at the time the individual is 
determined eligible for services. The client shall 
be placed in the highest category (beginning with 
Category One) for which he/she qualifies. 

(c) In establishing functional limitations as part 
of the priority category determination. Division 
staff shall review all functional capacities that may 
pose problems in the rehabilitation program and 
employment outcomes with the eligible individual 
in order to identify functional limitations related to 
the person's disability(ies). 

(d) The Division shall notify each eligible 
individual of his/her priority classification in 
writing at the same time the notification of 
eligibility is provided. 

(e) The record of services shall contain 
documentation of the rationale for the client's 
priority category assignment. 

(f) The Division shall change a client's priority 
classification immediately if there are changes in 
the client's circumstances that warrant a change. 
The Division shall notify the client in writing of 
any change in priority classification. 

Authority G.S. 143-545; 143-546; 34 C.ER. 
361.35. 

.0205 SERVICES COVERED BY OR 

EXEMPT FROM FINANCIAL NEEDS 
TEST 

(a) The financial need of a client, as determined 
by the financial needs test specified in Rule .0206 



of this Section, shall apply as a condition for 
furnishing the following vocational rehabilitation 
services to clients eligible for services or to clients 
eligible for extended evaluation: 

(1) physical and mental restoration; 

(2) maintenance; 

(3) transportation; 

(4) occupational license; 

(5) tools, equipment, and initial stock 
(including livestock), supplies and 
necessary shelters in connection with 
these items; 

(6) books, training supplies, and materials 
required for courses in post-secondary 
educational facilities; 

(7) services to members of a handicapped 
individual's family necessary to the 
adjustment or rehabilitation of the 
handicapped individual; 

(8) telecommunications, sensory, and other 
technological aids and devices; 

(9) recruiting and training to provide new 
employment opportunities in 
rehabilitation, health, welfare, public 
safety, law enforcement, and other 
public service employment; 

(10) post-employment services necessary to 
assist handicapped individuals in 
maintaining suitable employment (other 
than those services in Paragraph (b) of 
this Rule which are provided without 
regard to financial need); and 

(11) other goods and services expected to 
benefit a handicapped individual in 
obtaining employment. 

(b) The financial needs test shall not apply as a 
condition for furnishing the following: 



(1) 

(2) 
(3) 



(A) 
(B) 



IQ 



ID) 



services exempt from the financial 
needs test under 34 C.F.R. 361.47; 
interpreter services for the deaf; 
tuition for: 
on-the-job training; 
sheltered — aed — vocational — workshop 
community rehabilitation program 
training; 

community college/ college parallel 
programs up to the catalog rate; 
■(€) vocational training-r-ftad ati 
{i) community college vocational 
programs up to the catalog rate; 
and 
(ii) proprietary for profit vocational 
and trade schools up. to a limit of 
four thousand dollars ($4.000) per 
training program; and 



437 



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PROPOSED RULES 



(E) {D) post-secondary education up to 
the maximum rate charged for the 
public university system. 

(4) fees required in post-secondary 
educational facilities up to the 
maximum rate charged for the public 
university system; and 

(5) training supplies and materials required 
for training in division-operated 
facilities and the training programs 
listed in Paragraphs (b)(3)(A) and (B) 
of this Rule. 

(c) The Division may grant an exception to the 
rate for tuition and required fees for 
post-secondary education specified in Paragraphs 
(b)(3)(D) £E) and (b)(4) of this Rule when 
necessary to accommodate the special training 
needs of certain severely handicapped individuals 
who must be enrolled in high-cost, special 
programs designed for severely physically 
handicapped students. 

Authority G.S. 143-545; 143-546; 34 C.ER. 
361.40, 361.41, and 361.47. 

SECTION .0300 - SCOPE AND NATURE OF 
SERVICES 

0316 OTHER GOODS AND SERVICES 

(a) Modifications of clients' residences are 
limited as follows: 

(1) A limit of ten thousand dollars 
($10.000) per client shall be placed on 
modification projects when the 
residence is owned by the client or the 
client's immediate family. 

(2) Modifications to mobile homes shall be 
limited to mobile homes owned by the 
client or the client's family which are 
located on land owned by the client or 
client's family except for those 
situations where exterior modifications 
are not permanently affixed to a parcel 
of rented or leased land and are 
moveable with the mobile home- 
Mobile home modifications shall not 
exceed eight thousand five hundred 
dollars ($8.500) per client. 

(3) Modifications to rented or leased 
residences shall not exceed five 
thousand five hundred dollars ($5.500) 
per client. 

{b} Job site modifications shall not exceed seven 
lousand dollars ($7^000) p er client unless special 



ircumstances warrant a higher amount which must 



be approved by the Director. 

(c) The Division shall not purchase vehicles for 
clients. 

(d) The Independent Living Program of the 
Division may assist with the modification of a 
client : or familv-owned/leased vehicle in order to 
enhance the client's ability to function 
independently in the family or to actively 
participate in the community. The Vocational 
Rehabilitation Program of the Division may assist 
with the modification of a client-owned or leased 
vehicle for vocational purposes or to assist a client 
enrolled in a college training program when there 
are no or limited on-campus living facilities. 
Other options such as public transportation or 
family assistance shall be used when available. 
The following conditions and limitations apply: 



(1) Modifications 

for clients in 

programs unless the 

client of the Independent 



shall not be considered 

secondary school 

individual is a 

Living 



Rehabilitation Program. 

(2) Modifications for postsecondarv 
training may be considered only: 

(A) when the client is a full-time student 
with satisfactory grades and personal 
transportation is required as part of 
the training curriculum: or 

(B) when the client must live off campus 
because the college has no. or only 
limited, on-campus housing. 

(3) The Division may require an evaluation 
of any used vehicle by a qualified 
mechanic to verify that the vehicle is in 
good repair. The rehabilitation 
engineer shall certify that the vehicle 
will accommodate the needed 
modifications. 

(4) The Division shall not modify vehicles 
with more than 80.000 miles unless the 
individual is a client of the Independent 
Living Rehabilitation Program. 

(5) Modifications costing more than nine 
thousand dollars ($9.000) shall not be 
provided unless the individual is a 
client of the general program and the 
vehicle has less than 50.000 miles. 

(6) Division ownership of the modifications 
shall be secured through a signed 
Security Agreement. 

(e) Other goods and services not specifically 
mentioned in the rules in this Section may be 
provided to clients who are eligible for services if 
necessary to enable them to become employable 
or. in the case of the Independent Living Program. 



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438 



PROPOSED RULES 



to live independently . The other services shall not 
include the purchase of land or the purchase or 
construction of a building. 

Authority G.S. 143-546; 34 C.F.R. 361.42. 

SECTION .0500 - SUPPORTED 
EMPLOYMENT SERVICES 

.0501 COMPLIANCE WITH FEDERAL 
REQUIREMENTS 

(a) The Division shall administer its Su pported 
Employment Program in compliance with the 
provisions of federal regulations 34 C.F.R. Part 
363. 

(b) The Code of Federal Regulations adopted by 
reference in this Rule shall automatically include 
any later amendments thereto as allowed by. G.S. 
150B-21.6. Copies of 34 C.F.R. Part 363 may be 
obtained at no cost from the Division. 

Authority G.S. 143-545; 143-546; 150B-21.6; 34 
C.F.R. Part 363. 

.0502 ELIGIBILITY AND MOST SEVERE 
DISABILITY 

The Supported Employment Program shall serve 
only those individuals with the most severe 
disabilities as defined in 10 NCAC 20A .0102. 

Authority G.S. 143-545; 143-546; 34 C.F.R. 
363.3. 

SECTION .0600 - ORDER OF SELECTION 
FOR SERVICES 

.0601 APPLICABILITY OF POLICY 

(a) The rules in this Section specify the order of 
selection for service that shall be followed by the 
Division in its general program when it does not 
have the financial or staff resources to serve all 
eligible individuals who a pply for services. The 
rules do not apply to the Independent Living 
Program. 

(b) The order of selection for service is re quired 
by. Section 101 (a)(5)(A) of the 1992 Amendments 
to the Rehabilitation Act of 1973 and 34 C.F.R. 
361.36. 

Authority G.S. 143-545; 143-546; 34 C.F.R. 
361.36. 

.0602 IMPLEMENTATION OF ORDER OF 
SELECTION 

(a) The Division Director shall make a 



determination of the necessity for implementing the 
order of selection specified in these Rules as 
required by 34 CFR 361.36. 

(b) When the Division Director determines that 
the order of selection shall be implemented, it shall 
be implemented on a statewide basis and the 
Director shall also determine how many priority 
categories can be served within available resources 
and notify Division staff of this decision. 

(c) The Division shall provide written 
notification to all cooperative programs with which 
it has written agreements and all vendors of 
services as appropriate of its decision to implement 
an order of selection. 

Authority G.S. 143-545; 143-546; 34 C.F.R. 
361.36. 

.0603 PRIORITY CATEGORIES 

(a) The priority categories for the order of 
selection for services for eligible individuals are as 
follows: 



121 
(31 



Category One. Individuals who have 

the most severe disabilities; 

Category Two. Individuals with severe 

disabilities; 

Category Three. Individuals with a 

non-severe permanent disability(ies) 

who would be served by a program 



designed to help the individual 



141 



transition from school to work: 
Category Four. Individuals with a 
non-severe disability(ies) who will need 



multiple vocational rehabilitation 



(51 



services to attain a suitable employment 

outcome; and 

Category Five. Any eligible individual 



who does not qualify for placement in 
a higher priority category. 
(b) The Division shall follow the provisions of 
34 C.F.R. 361.30(b) regarding public safety 



officers when a pplicable in its order of selection. 



This adoption by. reference shall automatically 
include any later amendments to the cited federal 



regulation as allowed by G.S. 150B-21.6. A copy 
of the federal regulation may be obtained at no 
cost from the Division. 

(c) An individual's priority category is 
determined when eligibility is determined as 
outlined in Rule .0203 of this Subchapter. 

Authority G.S. 143-545; 143-546; 34 CF.R. 
361.30 and 361.36. 

.0604 PROCEDURES 



439 



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PROPOSED RULES 



(a) Eligible individuals who are already 
receiving services under an Individualized Written 
Rehabilitation Program (IWRP) at the time the 
order of selection is implemented shall not be 
subject to the order of selection process. Their 
rehabilitation programs will continue until their 
records of service are closed. 

(b) The Division shall serve individuals in 
Priority Category One first and individuals in the 
other priority categories in descending order from 
Priority Category Two down through Priority 
Category Five according to the availability of 
resources. 

(c) Eligible individuals for whom rehabilitation 
services have not been planned under an 
Individualized Written Rehabilitation Program 
prior to the implementation of the order of 
selection and whose classification is below the 
categories a pproved for service shall be placed in 
a "waiting" status. They shall remain in the 
"waiting" status until their priority category is 



opened for services. 

(d) When the order of selection is implemented, 
all individuals whose classification will mean they 
will be placed in a "waiting" status shall be 
notified in writing of their status. When services 
are made available to any category in which 
individuals have been in a "waiting" status, the 
Division shall notify all persons in that priority 
ategorv that their rehabilitation program can be 
leveloped. 

(e") Individuals determined eligible after the 
jrder of selection for service is implemented shall 
•eceive services if they are classified in the 
categories being served or shall be placed in a 
'waiting" status if their classification places them 



n a category not currently being served. 



iuthority O.S. 
161.36. 



ervices and is otherwise eligible for such services. 
be services shall be provided without regard for 
lie order of selection. 



143-545; 143-546; 34 C.F.R. 



0605 POST EMPLOYMENT SERVICES 

When a former client requires post-employment 



iuthority 
61.36. 



G.S. 143-545; 143-546; 34 C.F.R. 



0606 CASE FINDING AND REFERRAL 

Case finding efforts shall not be modified 
ecause of an order of selection. The Division has 



continuing responsibility to make the public and 



rferral sources aware of the services it has to 



offer eligible individuals with disabilities, 
especially those with severe disabilities. Referral 
sources shall be informed of an existing order of 
selection or of the potential of an order of 
selection being implemented, but they shall be 
reassured that this should not discourage referrals 
or a pplications. 



Authority C. S. 
361.36. 



.0607 



143-545; 143-546; 34 C.F.R. 



THIRD-PARTY FUNDING 
ARRANGEMENTS 

The Division shall ensure that its funding 
arrangements for providing services, including 
third-party arrangements and establishment grants. 
are consistent with the order of selection. 



Authority C. S. 
361.36. 



143-545; 143-546; 34 C.F.R. 



****************** 

J\otice is hereby given in accordance with O.S. 
150B-21.2 that DHR/Division of Medical Assis- 
tance intends to adopt rules cited as 10 NCAC 261 
.0401 - .0405; and amend rule cited as 10 NCAC 
26K.0O06. 

1 he proposed effective date of this action is 
October 1, 1994. 

1 he public hearing will be conducted at 1:30 
p.m. on August 1, 1994 at the North Carolina 
Division of Medical Assistance, 1985 Umstead 
Drive, Room 132, Raleigh, NC 27603. 

Jxeason for Proposed Action: 

10 NCAC 261 .0401 - .0405 - To provide pre- 
admission screening and annual resident review 
appeal procedures for nursing facility residents. 
10 NCAC 26K .0006 - To clarify provider billings 
to recipients and protect recipient from being 
billed for services which the recipient anticipates 
will be paid for by Medicaid. 

Ksomment Procedures: Written comments con- 
cerning these Rules must be submitted by August 1, 
1994, to: Division of Medical Assistance, 1985 
Umstead Drive, Raleigh, NC 27603, ATTN: Clar- 
ence Ervin, APA Coordinator. Oral comments 
may be presented at the hearing. In addition, a 



NORTH CAROLINA REGISTER 



July 1, 1994 



440 



PROPOSED RULES 



fiscal impact statement is available upon written 
request from the same address. 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 261 - PROCEDURAL RULES 

SECTION .0400 - PASARR HEARINGS 

.0401 DEFINITIONS 

(a) "Division" means the North Carolina Divi- 
sion of Medical Assistance of the Department of 
Human Resources. 

(b) "Hearing Officer" means the person desig- 
nated to preside over hearings regarding Pre- 
admission Screening and Annual Resident Review 
(PASARR) determinations. 

(c) "Hearing Unit" means the Chief Hearing 
Officer and his staff in the Division of Medical 
Assistance. Department of Human Resources. 

(d) "Preadmission Screening and Annual Resi- 
dent Review (PASARR) Notice of Determination" 
means the form developed by the Division. 

(e) "Request for Hearing" means a clear expres- 
sion, in writing, by the evaluated individual or 
family member or legal representative of the 
evaluated individual, that the evaluated individual 
wants to appeal the PASARR determination. 

(f) The "Request for Hearing" form means the 
form developed by the Division. 

{g} TJie "North Carolina PASARR Psychiat- 
ric/Mental Retardation/ Dual Psychiatric and 
MR/RC Evaluation" forms means the forms 
developed by the Division. 

Authority G.S. 108A-25(b); 42 U.S.C.S. 
1395i-3(e)(3), (f)(3); 1396r(e)(3), (e)(7)(F), (f)(3); 
42 C.F.R. 483.5; 42 C.F.R. 483.12; 42 C.F.R. 
483.200; 42 C.F.R. 483.204; 42 C.F.R. 483.206. 

.0402 PASARR REQUIREMENTS 

(a) The evaluated individual and family member 
or legal representative shall be notified in writing 
of the Division of MH/DD/SAS' PASARR 
determination under the provisions of 42 CFR 
483 .130(10 which is incorporated by reference with 
subsequent changes or amendments. A copy of 42 
CFR 483 . 1 30(k) can be obtained from the Division 
of Medical Assistance at a cost of twenty cents 
($0.20) per copy. 

(b) The PASARR Notice of Determination form 
shall be used by Division of MH/DD/SAS when 
giving notice of a PASARR determination under 
provisions of 42 CFR 483.130(l)(l-4) which is 
incorporated by reference with subsequent changes 



or amendments. A copy of 42 CFR 

483.130(T)(l-4) can be obtained from the Division 
of Medical Assistance at a cost of twenty cents 
($0.20) p er copy. 
(c) The Division of MH/DD/SAS shall provide 



a Request for Hearing form, pertinent Evaluation 



form, and PASARR Notice of Determination to the 



evaluated individual and legal representative under 



provisions of 42 CFR 483.128(1) which is 
incorporated by reference with subsequent changes 



or amendments. A copy of 42 CFR 483.128(1) 



can be obtained from the Division of Medical 



Assistance at a cost of twenty cents ($0.20) per 
copy. 

Authority G.S. 108A-25(b); 42 U.S.CS. 
1395i-3(e)(3), (f)(3); 1396r(e)(3), (e)(7)(F), (f)(3); 
42 CFR. 483.5; 42 CFR. 483.12; 42 CF.R. 
483.128; 42 CF.R. 483.130; 42 CF.R. 483.200; 
42 CF.R. 483.204; 42 CF.R. 483.206. 

.0403 INITIATING A HEARING 

(a) In order to initiate an a ppeal of a PASARR 



determination, the evaluated individual or family 
member or legal representative shall submit 
written request for a hearing to the Hearing Unit. 



The request for hearing must be received by the 
Hearing Unit within JJ. calendar days from the 
date of the PASARR Notice of Determination. If 
the 11th day falls on a Saturday. Sunday, or legal 



holiday, then the period during which an appeal 



may be requested shall run until the end of the 

next day which is not a Saturday. Sunday, or legal 

holiday. 

(b) The request for hearing shall be submitted to 



the Hearing Unit by mail, facsimile, or hand 
delivery. 

Authority G.S. 108A-25(b); 42 U.S.CS. 1395i 
3(e)(3) and - (f)(3); 1396r(e)(3), (e)(7)(F), and 
(f)(3); 42 CF.R. 431.200; 42 CF.R. 483.5; 42 
C.F.R. 483.12; 42 CF.R. 483.200; 42 CF.R, 
483.204; 42 CF.R. 483.206. 

.0404 HEARING PROCEDURES 

(a) Upon timely receipt of a request for a 
hearing, the Hearing Unit shall notify the Division 
of MH/DD/SAS of the request. 

(b) The parties shall be notified by certified maij 
of the date, time and place of the hearing. Ifthe 
hearing is to be conducted in person, it shall be 
held in Raleigh. North Carolina. 

{c} The Division of MH/DD/SAS shall mail all 
documents and records to be used at the hearing to 
the person requesting the hearing by certified mail 



441 



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July 1, 1994 



PROPOSED RULES 



and forward identical information to the Hearing 
Unit, to be received at least five working days 
prior to the hearing. 

(d) The hearing officer may grant continuances. 

(e) The hearing officer may dismiss a re quest 
for a hearing if the evaluated individual or legal 
representative fails to a ppear at a scheduled 
hearing. 

j[fj The hearing officer may proceed to conduct 
scheduled hearing if the Division of 
MH/DD/SAS fails to a ppear at a scheduled 
hearing. 

(g) The Rules of Civil Procedure as contained in 
G.S. 1A-1 and the General Rules of Practice for 
the Superior and District Courts as authorized by 
G.S. 7A-34 and found in the Rules Volume of the 
North Carolina General Statutes shall not apply in 
any hearings held by the Division Hearing Officer 
unless another specific statute or other rule 
provides otherwise. Division hearings are not 
hearings within the meaning of G.S. 150B and 
shall not be governed by the provisions of that 
chapter unless otherwise stated in these Rules. 



The hearing officer shall use the North Carolina 
Rules of Evidence for guidance in conducting 
hearings. Parties may be represented by counsel 



or other representative at the hearing. 



recipient has specifically understood he will be 
charged for the services. This provision ia meant 
to protect the recipient from being billed fo r 
s ervices which the recipient anticipates will be paid 
for by Medicaid. 

(b) A provider may not bill a Medicaid recipient 
for Medicaid services for which it receives no 
reimbursement from the state agency because the 
provider failed to follow program regulations. 

(c) A provider who accepts a patient as a 
Medicaid patient agrees to accept Medicaid 
payment plus any authorized co-payment and third 
party payment as payment in full, except that a 
provider may not deny services to any Medicaid 
patient on account of the individual's inability to 
pay the co-pay amount. 

(d) Providers may bill the recipient when they 
are 65 years of age or older and qualify for 
Medicare benefits, but fail to supply their 
Medicare number as proof of coverage. 

Authority G.S. 108A-25(b); 108A-54; 150B-11; 42 
C.F.R. 447.15. 

TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 



Authority G.S. 108A-25(b); 42 U.S.C.S. 
1395i-3(e)(3), (e)(7)(F), (f)(3); 42 U.S.C.S. 
1396r(e)(3), (f)(3); 42 C.F.R. 431.200; 42 C.F.R. 
483.200; 42 C.F.R. 483.204; 42 C.F.R. 483.206. 

.0405 HEARING OFFICER'S FINAL 
DECISION 

The Hearing Officer's final decision shall uphold 
jr reverse the Division of MH/DD/SAS' decision. 
Copies of the final decision shall be mailed via 
^rtified mail to the parties. 

iuthority G.S. 108A-25(b); 42 U.S.CS. 
\395i-3(e)(3), (e)(7)(F), (f)(3); 42 U.S.CS. 
\396r(e)(3), (f)(3); 42 C.F.R. 431.200; 42 CFR. 
183.200; 42 C.F.R. 483.204; 42 CFR. 483.206. 

SUBCHAPTER 26K - TITLE XLX APPEALS 
PROCEDURES 

0006 PROVIDER BILLINGS TO 
RECIPIENT 

(a) Except as provided for in Paragraph (d) of 
ns Rule, providers shall Providers may not bill 
ledicaid recipients for any Medicaid covered 
ervices provided to recipients unless the provider 
as specifically informed the recipient and the 



ISotice is hereby given in accordance with G.S. 
150B-21.2 that the Department of Environment, 
Health, and Natural Resources, Mining Commis- 
sion intends to adopt rule cited as 15A NCAC 5B 
.0013. 

1 he proposed effective date of this action is 
October 1, 1994. 

1 he public hearing will be conducted at 7:00 
p.m. on August 4, 1994 at the Archdale Building, 
Ground Floor Hearing Room, 512 North Salisbury 
Street, Raleigh, North Carolina. 

ixeason for Proposed Action: To establish a 
period of time for applicants to respond to the 
Department 's requests for additional information 
relating to mining permit applications. 

Lsomment Procedures: Any person requiring 
information may contact Mr. Tracy E. Davis at 
Land Quality Section, P.O. Box 27687, Raleigh, 
North Carolina 27611-7687, telephone (919) 
733-4574. Written comments must be submitted to 



NORTH CAROLINA REGISTER 



July 1, 1994 



442 



PROPOSED RULES 



the above address no later than August 15, 1994. 
Notice of an oral presentation should be given to 
the above address and telephone number. Persons 
who call in advance of the hearing will be given 
priority on the speaker's list. 

CHAPTER 5 - MINING: MINERAL 
RESOURCES 



SUBCHAPTER 5B - PERMITTING AND 
REPORTING 

.0013 RESPONSE DEADLINE TO 

DEPARTMENT'S REQUEST(S) 

An applicant or permittee shall submit to the 
Department supplemental information regarding an 
application for a new permit, modified permit, or 
permit renewal within 180 days after the date of 
receipt of the Department's written request(s) for 
such information. Upon written request of the 
applicant or permittee to the Director, an addition- 
al reasonable specified period of time not to 
exceed one year shall be granted upon determina- 
tion of good cause by. the Director. Additional 
time may be granted by the Mining Commission, 
provided written request is made by the a pplicant 
or permittee before the expiration of the one-year 
period. 



Statutory Authority G.S. 
143B-290. 



74-51; 74-52; 74-63; 



****************** 

l\otice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Coastal Management 
intends to adopt rules cited as 15A NCAC 7H 
.2201 - .2205. 

1 he proposed effective date of this action is 
December 1, 1994. 

1 he public hearing will be conducted at 4:00 
p.m. on July 28, 1994 at the Sheraton Grand, New 
Bern, NC. 

ixeason for Proposed Action: The adoption of 
these Rules will establish a procedure for authoriz- 
ing the installation of private moorings in response 
to an increasing demand for such facilities over the 
past 24 months. This is a new permit requirement 
for a type of development that has not previously 



required permits. 

Ksomment Procedures: All persons interested in 
this matter are invited to attend the public hearing. 
The Coastal Resources Commission will receive 
mailed written comments postmarked no later than 
August 1, 1994. Any person desiring to present 
lengthy comments is requested to submit a written 
statement for inclusion in the record of proceed- 
ings at the public hearing. Additional information 
concerning the hearing or the proposals may be 
obtained by contacting Dedra Blackwell, Division 
of Coastal Management, PO Box 27687, Raleigh, 
NC 27611-7687, (919) 733-2293. 

CHAPTER 7 - COASTAL 
MANAGEMENT 

SUBCHAPTER 7H - STATE GUIDELINES 

FOR AREAS OF ENVIRONMENTAL 

CONCERN 

SECTION .2200 - GENERAL PERMIT 

FOR CONSTRUCTION OF FREE 

STANDING MOORINGS IN 

ESTUARINE WATERS AND 

PUBLIC TRUST AREAS 

.2201 PURPOSE 

This permit will allow the construction of free 
standing moorings in the estuarine waters and 
public trust areas AECs according to the authority 
provided in Subchapter 7J .1100 of this Chapter 
and according to the following guidelines. This 
permit will not apply to waters adjacent to the 
Ocean Hazard AEC. 

Statutory Authority G.S. 113A-107; 113A-118.1. 

.2202 APPROVAL PROCEDURES 

(a) The applicant must contact the Division of 
Coastal Management and complete an application 
form requesting a pproval for development. 

(b) The a pplicant must provide: 

(1) information on site location, dimensions 
of the project area, and his/her name 
and address; and 

(2) a dated plat(s) showing existing and 
proposed development; and 

(3) confirmation that: 

£A} a written statement has been obtained 
and si gned by the adjacent riparian 
property owners indicating that they 
have no objections to the proposed 



443 



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PROPOSED RULES 



work; or 
(B) the adjacent riparian property owners 
have been notified by certified mail of 
the proposed work. Such notice shall 
instruct adjacent pro perty owners to 
provide any comments on the pro- 
posed development in writing for 
consideration by. permitting officials 
to the Division of Coastal Manage- 
ment within ten days of receipt of the 
notice, and, indicate that no response 
will be interpreted as no objection- 
DC M staff will review all comments. 
If PCM determines that: 
£i) the comments are relevant to the 
potential impacts of the proposed 
project; and 
(ii) the permitting issues raised by the 
comments are worthy of more 
detailed review, the applicant will 
be notified that he/she must sub- 
mit an application for a major 
development permit. 
(c) A pproval of individual projects will be 
acknowledged in writing by the Division of Coast- 
al Management and the a pplicant shall be provided 
a copy of this Section. Construction authorized by 
this permit must be completed within 90 days of 
permit issuance or the general authorization ex- 
pires and a new permit shall be required to begin 
or continue construction. 

Statutory Authority G.S. 113A-107; 113A-118.1 

.2203 PERMIT FEE 

The a pplicant must pay a permit fee of fifty 
dollars ($50.00). This fee may be paid by check 



or money order made payable to the Department. 



Statutory Authority G.S. 113A-107; 113A-118.1. 

2204 GENERAL CONDITIONS 

(a) A "free standing mooring" is any means to 
attach a ship, boat, vessel, floating structure or 



other water craft to a stationary underwater device. 



mooring buoy, buoyed anchor, or piling (as long 



as the piling is not associated with an existing or 
proposed pier, dock, or boathouse). 



(b) Free standing moorings authorized by this 
permit shall be for the exclusive use of the riparian 



and shall not provide either leased or rented 
moorings or any other commercial services. 



landowner(s) in whose name the permit is issued. 



(c) There shall be no unreasonable interference 
with navigation or use of the waters by the public 



by the existence of free standing moorings autho- 
rized by this permit. 

(d) This general permit may not be applicable to 
proposed construction when the Department 
determines that the proposal might significantly 
affect the quality of the human environment or 
unnecessarily endanger adjoining properties. In 
those cases, individual permit applications and 
review of the proposed project will be required 
according to 15A NCAC 7J. 

(e) Development carried out under this permit 
must be consistent with all local requirements. 
AEC Guidelines, and local land use plans current 
at the time of authorization. 

(f) Individuals shall allow authorized representa- 
tives of the Department of Environment. Health, 
and Natural Resources to make periodic inspec- 
tions at any time deemed necessary in order to be 
sure that the activity being performed under the 
authority of this general permit is in accordance 
with the terms and conditions prescribed herein. 

(g) Free standing mooring(s) shall not be trans- 
ferable or assignable. Upon transfer of riparian 
property ownership, the mooring(s) must be 
removed by the original permittee unless a new 
permit is issued to the new riparian owner. 

Statutory Authority G.S. 113A-107; 113A-118.1. 

.2205 SPECIFIC CONDITIONS 

(a) Free standing moorings may be located up to 
a maximum of 400 feet from the mean high water 
line, or the normal water line, whichever is appli- 
cable. 

(b) Free standing moorings along federally 
maintained channels must meet Corps of Engineers 
guidelines. 

(c) Free standing moorings in no case shall 
extend more than 1/3 the width of a natural water 
body or man-made canal or basin- 
id) Free standing mooring buoys and piles are to 

be evaluated based upon the arc of the swing 
including the vessel to be moored. Moorings and 
the attached vessel shall not interfere with the 
access to any riparian property, and shall have a 
minimum setback of .15 feet from the adjacent 
property lines extended into the water at the points 
that they intersect the shoreline. The minimum 
setbacks provided in the rule may be waived by 
the written agreement of the adjacent riparian 
owner(s). or when two adjoining riparian owners 
are co-applicants. Should the adjacent property be 
sold before construction commences, the a pplicant 
shall obtain a written agreement with the new 
owner waiving the minimum setback and submit it 



9:7 



NORTH CAROLINA REGISTER 



July I, 1994 



444 



PROPOSED RULES 



to the Division of Coastal Management prior to 
initiating any development of free standing moor- 
ings. The line of division of areas of riparian 
access shall be established by drawing a line along 
the channel or deep water in front of the property, 
then drawing a line perpendicular to the line of the 
channel so that it intersects with the shore at the 
point the upland property line meets the water's 
edge. 

(e) The total number of docking/mooring facili- 
ties to be authorized via a CAM A General permit, 
a Certificate of Exemption or any combination of 
the two may not exceed four per property. 

£0 Free standing moorings shall not significantly 
interfere with shellfish franchises or leases. 
A pplicants for authorization to construct free 
standing moorings shall provide notice of the 
permit application to the owner of any part of a 
shellfish franchise or lease over which the pro- 
posed installation would extend. 

(g) Free standing moorings may not be estab- 
lished in submerged cable/pipe crossing areas or in 
a manner which interferes with the operation of an 
access through any bridge. 

(h) Free standing moorings shall be marked or 
colored in compliance with U.S. Coast Guard and 
N.C. Wildlife Resource Commission requirements 
and the required marking maintained for the life of 
the moonng(s). 

£i] Free standing moorings must bear owner's 
name, vessel State registration numbers or U. S. 
Customs Documentation numbers. Required 
identification must be legible for the life of the 
mooring(s). 

(j) The type of material used to anchor a pro- 
posed mooring buoy(s) must be acceptable to the 
Division of Coastal Management. 

(k) If use of any free standing mooring autho- 
rized by this General permit is discontinued for a 
period of J_2 months or more, it must be removed 
by the permittee. 

£1} Mooring buoys authorized by this General 
permit must be a minimum 12" in diameter and 
shall not exceed 36" inches in diameter. 

Statutory Authority G.S. 113A-107; 113A-118.1. 
****************** 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that EHNR - Commission for Health 
Sendees intends to amend rules cited as ISA 
NCAC 19A .0101 - .0102, .0202 - .0205, .0401; 
and adopt rules cited as 15A NCAC 19A .0208 - 



.0209. 

1 he proposed effective date of this action is 
October 1, 1994. 

1 he public hearing will be conducted at 1:30 
p.m. on July 21, 1994 at the Archdale Building, 
Ground Floor Hearing Room, 512 North Salisbury 
Street, Raleigh, N. C. 

Jxeason for Proposed Action: 
15A NCAC 19A .0101 - E. coli 0157.H7 is a 
bacteria that has been recognized as an important 
public health threat in recent years. It causes 
diarrhea, bloody diarrhea, and hemolytic-uremic 
syndrome and can lead to chronic renal failure 
and death. In 1993, the Council of State and 
Territorial Epidemiologists recommended that 
states make this a reportable disease and that 
laboratories should routinely culture all stool 
specimens from persons with bloody diarrhea for 
E. coli 0157:H7. It is transmitted by the fecal-oral 
route and has been associated with foodborne and 
day care outbreaks. This amendment adds E. coli 
0157.H7 infection and hemorrhagic fevers to the 
list of reportable diseases and conditions. 
This Rule requires that susceptibility testing be 
performed on all cultures tested for Mycobacterium 



tuberculosis . Adequate treatment of every case of 
TB is necessary to prevent infection in others. 
Requiring that susceptibilities be performed on all 
cultures tested for Mycobacterium tuberculosis 



allows the physician to order the most effective 
treatment for each case ofTBas quickly as possi- 
ble, thus reducing further unnecessary spread of 
infection. 

Proposed changes: (b) adds PCR as another 
confirmatory test for HIV infection. 
15A NCAC 19 A .0102 - This proposed rule would 
make E. coli 0157:H7 reportable by both physi- 
cians and laboratories, require laboratories to 
culture all stool specimens submitted from persons 
with bloody diarrhea for E. coli 0157.H7, and 
specify control measures to prevent spread. 
(a)(4) This change adds HIV (24) to the list of 
reportable diseases which require specified infor- 
mation to be reported on a surveillance form 
provided by the Division of Epidemiology. 
(d)(2) Redefines how, when and to whom specified 
STD laboratory reports will be reported. This is 
necessary to improve the HIV/STD Control 
Branch's ability to track and initiate appropriate 
and timely disease intervention activities. Changes 



445 



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PROPOSED RULES 



wording for clarity. Adds high STS titers as a 
priority for immediate reporting by phone. This 
will improve the HIV/STD Control Branch 's ability 
to rapidly respond to suspected infectious syphilis 
cases and to prevent the further spread of this 
disease. To help increase response time the 
change also modifies the rule to allow laboratories 
to report directly to the HIV/STD Control Branch 
Regional Office where their laboratory is located 
as well as the HIV/STD Control Branch in 
Raleigh. 

This rule requires that reports of susceptibility 
testing be reported within 7 days. Prompt 
reporting of susceptibility is vital. Current 
technology may require up to eight weeks to 
confirm TB and susceptibilities. Delays in 
reporting result in delays in ordering adequate 
treatment, increasing the risk of spread of resistant 
TB. 

ISA NCAC 19A .0202 - (l)(b) This change 
broadens the control measures to include drug 
elated paraphernalia, which could be 
:ontaminated with HIV and then transmitted to 
minfected individuals through the sharing of IDU 
works. " 

'4) The change adds clarity to the rule. The rule 
tow clearly focuses on the risk of transmission "if 
he source were infected with HIV. " 
10) The change allows for pretest counseling to 
te done in a group setting when it is deemed 
ippropriate by the provider. However, it also 
learty states that clients must be allowed to ask 
juestions in private, and that post test counseling 
nust be privately given to each infected person. 
SA NCAC 19 A .0203 - (b)(3) This change 
rovides clarity that focuses on the risk of 
ransmission "if the source were infected with the 
epatitis B virus. " 

SA NCAC 19A .0204 - (e) This change expands 
his rule to include chlamydia which can lead to 
evere complications or death for the baby (during 
regnancy or after its birth). If detected, 
hlamydia can be treated. 

5A NCAC 19 A .0205 - This rule requires that 
ersons with tuberculosis infection over 50 years of 
ge who have risk factors for HIV be tested for 
UV and that persons under 50 years of age with 
iberculosis infection be tested for HIV. Persons 
o-ufected with TB and HIV must be treated for 
bout twice as long as persons who do not have 
\e HIV (CDC/ATS treatment guidelines), 
herefore, it is vital that physicians know the HIV 
atus of persons at highest risk of HIV infection, 
ersons under 50 years of age with TB infection 
nd to also have risk factors for HIV infection. 



Secondarily, HIV infection tends to reduce the 
capacity of the immune system to react to TB 
antigen. Use of at least two other antigens in 
persons who have other indications of 
compromised immunity provides additional 
information the clinician can use in evaluating 
whether the immune system is capable of providing 
a true response to the TB antigen. 
15A NCAC 19A .0208 - For the last several years 
there have been a large number of cases of 
shigellosis due primarily to transmission in day 
care centers. Current control measures are vague 
and have been difficult for local health 
departments and day care centers to interpret. 
These proposed rule changes clarify the control 
measures for shigellosis. 

15A NCAC 19 A .0209 - There have been a 
number of occasions in the last several years when 
two or more cases of meningococcal disease have 
been reported in the same geographic area within 
a short time. When this occurs it is necessary to 
determine whether the organisms are of the same 
serogroup in order to assess the potential for an 
outbreak. Frequently, no serotyping has been 
done on the earliest specimens which may be 
unavailable or non-viable by the time subsequent 
cases occur. Because of this the CDC has 
recommended that all isolates of meningococcus be 
serogrouped. These proposed rule changes should 
require laboratories to serogroup meningococcal 
isolates or send them to the State Public Health 
Laboratory for serogrouping. 
15A NCAC 19 A .0401 - The proposed rule 
changes serve to clarify questions regarding the 
number of doses of measles vaccine, mumps 
vaccine, and rubella vaccine that are required for 
an individual prior to school entry (i. e. , two doses 
of measles vaccine, one dose each of rubella and 
mumps vaccine). In addition, these rule changes 
also clarify the existing language regarding 
diphtheria, tetanus, and whooping cough 
vaccination, oral poliomyelitis vaccination, and 
mumps vaccination prior to school entry. Finally, 
these rule changes accelerate the dates by which 
infants are required to be immunized (i. e. , three 
doses of DTP vaccine by age 7 months instead of 
1 year). These changes will bring our rules in line 
with the recommended schedule established by the 
Advisory Committee on Immunization Practices 
(ACIP). In addition, these changes will help to 
ensure that infants receive their first series of 
immunizations closer to the recommended 
schedule. 



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July 1, 1994 



446 



PROPOSED RULES 



(comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to Grady L. 
Balentine, Department of Justice, P.O. Box 629, 
Raleigh, NC 27602-0629. All written comments 
must be received by August 1, 1994. Persons who 
wish to speak at the hearing should contact Mr. 
Balentine at (919) 733-4618. Persons who call in 
advance of the hearing will be given priority on 
the speaker's list. Oral presentation lengths may 
be limited depending on the number of people that 
wish to speak at the public hearing. Only persons 
who have made comments at a public hearing or 
who have submitted written comments will be 
allowed to speak at the Commission meeting. 
Comments made at the Commission meeting must 
either clarify previous comments or proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL 
INTERESTED AND POTENTIALLY AFFECTED 
PERSONS, GROUPS, BUSINESSES, 
ASSOCIATIONS, INSTITUTIONS OR AGENCIES 
MAKE THEIR VIEWS AND OPINIONS KNOWN 
TO THE COMMISSION FOR HEALTH SERVICES 
THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS, WHETHER THEY 
SUPPORT OR OPPOSE ANY OR ALL 
PROVISIONS OF THE PROPOSED RULES. THE 
COMMISSION MAY MAKE CHANGES TO THE 
RULES AT THE COMMISSION MEETING IF THE 
CHANGES COMPLY WITH GS. 150B-21.2(f). 

CHAPTER 19 - HEALTH: EPIDEMIOLOGY 

SUBCHAPTER 19A - COMMUNICABLE 
DISEASE CONTROL 

SECTION .0100 - REPORTING OF 
COMMUNICABLE DISEASES 

.0101 REPORTABLE DISEASES AND 
CONDITIONS 

(a) The following named diseases and conditions 
are declared to be dangerous to the public health 
and are hereby made reportable within the time 
period specified after the disease or condition is 
reasonably suspected to exist: 

(1) acquired immune deficiency syndrome 
(AIDS) - 7 days; 

(2) amebiasis - 7 days; 

(3) anthrax - 24 hours; 



(4) 
(5) 
(6) 
(7) 
(8) 
(9) 

(10) 
(ID 
(12) 
(13) 

<W 



(15) 

&h 

(19) 

LXSU 

(~i(Y\ 
rti\ 

<24) 

t=T7 

/-IT. 
\£ ' ) 

C1Q\ 

t*T7 
r?rw 

m 



(7.A\ 

\ SJ ) 
Ilti\ 

09) 

/Ar\\ 
<44) 

l A1\ 

{44) 



blastomycosis - 7 days; 

botulism - 24 hours; 

brucellosis - 7 days; 

Campylobacter infection - 24 hours; 

chancroid - 24 hours; 

chlamydial infection (laboratory 

confirmed) - 7 days; 

cholera - 24 hours; 

dengue - 7 days; 

dipthcria diphtheria - 24 hours; 

R coli 0157:H7 infection = 24 hours: 

(14) encephalitis - 7 days; 

(15) foodborne disease, including but 
not limited to Clostridium perfringens, 
staphylococcal, and Bacillus cereus - 24 
hours; 

(16) gonorrhea - 24 hours; 

(IT) granuloma inguinale - 24 hours; 
(18) Hemophilus Haemophilus 



influenzae, invasive disease - 24 hours; 
hemorrhagic fevers - 24 hours: 

(20) hepatitis A - 24 hours; 

(21) hepatitis B - 24 hours; 

(22) hepatitis B carriage - 7 days; 

(23) hepatitis non-A, non-B - 7 days; 

(24) human immunodeficiency virus 
infection (HIV) confirmed - 7 days; 

(25) legionellosis - 7 days; 
leprosy - 7 days; 
leptospirosis - 7 days; 
Lyme disease - 7 days; 

lymphogranuloma venereum - 7 



malaria - 7 days; 
measles (rubeola) - 24 hours; 
meningitis, pneumococcal 



- 7 



meningitis, viral (aseptic) - 7 



(26) 

(27) 

(28) 

(29) 

days; 

(30) 

(31) 

(32) 

days; 

(33) 

days; 

(34) meningococcal disease - 24 hours; 

(35) mucocutaneous lymph node 
syndrome (Kawasaki syndrome) - 7 
days; 

(36) mumps - 7 days; 

(37) nongonococcal urethritis - 7 days; 

(38) plague - 24 hours; 

(39) paralytic poliomyelitis - 24 hours; 

(40) psittacosis - 7 days; 

(41) Q fever - 7 days; 
rabies, human - 24 hours; 
Reye's syndrome - 7 days; 
Rocky Mountain spotted fever - 7 



(42) 

(43) 

(44) 

days; 

(45) 

(46) 



rubella - 24 hours; 
rubella congenital syndrome 



447 



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July 1, 1994 



PROPOSED RULES 



days; 
(45) (47) salmonellosis - 24 hours; 
{46) (48) shigellosis - 24 hours; 

(47) £49) syphilis - 24 hours; 

(48) {50} tetanus - 7 days; 

(49) (51) toxic shock syndrome - 7 days; 

(50) (52) trichinosis - 7 days; 

(54) (53) tuberculosis - 24 hours; 

(53) (54) tularemia - 24 hours; 

(55) £55} typhoid - 24 hours; 

(54) (56) typhoid carriage (Salmonella 
typhi) - 7 days; 

(55) (57) typhus, epidemic (louse-borne) - 
7 days; 

(56) (58) whooping cough - 24 hours; 

(57) (59) yellow fever - 7 days. 

(b) For purposes of reporting; confirmed human 
immunodeficiency virus infection (HIV) is defined 
as a positive virus culture; repeatedly reactive EIA 
antibody test confirmed by western blot or indirect 
immunofluorescent antibody test; PCR; or other 
confirmed testing method approved by the Director 
of the State Public Health Laboratory conducted on 
or after February 1, 1990. 

(c) In addition to the laboratory reports specified 
in G.S. 130A-139. laboratories shall report the 
following laboratory test results: 

(1) Direct susceptibilities, as the percent of 
colonies resistant to isoniazid. rifampin, 
streptomycin, ethambutol. and any 
other antimvcobacterials tested for all 
cultures of Mycobacterium tuberculosis; 
and 

£2) Isolates of E. coli 0157:H7. 

Statutory Authority G.S. 130A-134; 130A-135; 
130A-141, 

.0102 METHOD OF REPORTING 

(a) When a report of a disease or condition is 
required to be made pursuant to G.S. 130A-135 
through 139 and 15A NCAC 19A .0101, the 
report shall be made to the local health director as 
follows: 

(1) For diseases and conditions required to 
be reported within 24 hours, the initial 
report shall be made by telephone, and 
the report required by Subparagraph (2) 
of this Rule shall be made within seven 
days. 

(2) In addition to the requirements of 
Subparagraph (1) of this Rule, the 
report shall be made on the 
communicable disease report card 
provided by the Division of 



Epidemiology and shall include the 
name and address of the patient, the 
name and address of any minor's parent 
or guardian, and all other pertinent 
epidemiologic information requested on 
the form. 

(3) Until September 1, 1994, reports of 
cases of confirmed HIV infection 
identified by anonymous tests that are 
conducted at HIV testing sites 
designated by the State Health Director 
pursuant to 15A NCAC 19A .0202(10) 
shall be made on forms provided by the 
Department for that purpose. No 
communicable disease report card shall 
be required. Effective September 1, 
1994, anonymous testing shall be 
discontinued and all cases of confirmed 
HIV infection shall be reported in 
accordance with 15 A NCAC 19A 
.0102(a)(1) and (2). 

(4) In addition to the requirements of 
Subparagraphs (1) and (2) of this Rule, 
the epidemiologic information requested 
on a surveillance form provided by the 
Division of Epidemiology shall be 
completed and submitted for the 
reportable diseases and conditions 
identified in 15A NCAC 19A .0101(1), 
(6), (+7), (18), (20), (21), (22), (23), 
(24), (25), (26), £27L (28), (39); (30), 
£31L (32), &¥h (34), £35L IML TO 
(58), (39L (40L ( 4 1), ( 4 2), (43), (44), 
£45L I46L (1 8 ), ( 4 9), (50), (51), (52), 
(53), (54), (551, (56), and (58) . 

(5) Communicable disease report cards and 
surveillance forms are available from 
the Surveillance Unit, N.C. Division of 
Epidemiology, P.O. Box 27687, 
Raleigh, N.C. 27611, and from local 
health departments. 

(b) Notwithstanding the time frames established 
in J_5A NCAC 19A .0101 a restaurant or other 
food or drink establishment is required to report 
all outbreaks or suspected outbreaks of foodborne 
illness in its customers or employees and all 
suspected cases of foodborne disease or foodborne 
condition in food-handlers at the establishment by 
telephone to the local health department within 24 
hours in accordance with Subparagraph (a)(1) of 
this Rule . However, the establishment is not 
required to submit a report card or surveillance 
form pursuant to Subparagraphs (a)(2) and (a)(3) 
of this Rule . 

(c) For the purposes of reporting by restaurants 



9:7 



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448 



PROPOSED RULES 



(2) 



and other food or drink establishments pursuant to 
G.S. 130A-138, the diseases and conditions to be 
reported shall be those listed in 15 A NCAC 19A 
.0101 (5), (7), (10), OIL tWfc LL5L <&h I2QL 
<4$h £47) <4€h £4JL ^h £52}, <5£h £55_L and 
(54) £56). 

(d) Laboratories required to report test results 
pursuant to G.S. 130A-139 and 15A NCAC 19A 
.0101(c) shall report as follows: 

(1) The results of the specified tests for 
syphilis and gonorrhea shall be reported 
to the local health department by the 
first and fifteenth of each month. 
Reports of the results of the specified 
tests for gonorrhea and syphilis shall 
include the specimen collection date, 
the patient's age, race, and sex, and the 
submitting physician's name, address, 
and telephone numbers. 
Positive darkfield examinations for 
syphilis and STS titers of 1:16 and 
above shall be reported within 24 hours 
by telephone to the fflV/STD Control 
Branch by telephone at (919) 733-7301, 
or the HIV/STD Control Branch 
Regional Office where the laboratory is 
located. 

Positive tuberculosis test results shall be 
reported to the Tuberculosis Control 
Branch on a form provided by the 
Department within seven days. 
Laboratory reports required by 15A 
NCAC 19A .0101(c)(1) and by G.S. 
BOA- 139(1) shall be reported within 
seven days of completion of the 
laboratory test to the Tuberculosis 
Control Branch on a form provided by 
the Branch or in another format 
acceptable to the Branch that includes 
the information on the form. 
Positive cultures for E\ coli 0157:H7 
shall be reported within 24 hours of 
isolation to the Communicable Disease 
Control Section. 



(3) 



£4} 



Statutory Authority G. S. 
130A-141. 



130A-134; 130A-135; 



SECTION ,0200 - CONTROL MEASURES 
FOR COMMUNICABLE DISEASES 

.0202 CONTROL MEASURES - HTV 

The following are the control measures for the 
Acquired Immune Deficiency Syndrome (AIDS) 
and Human Immunodeficiency Virus (HIV) 



(c) 



(d) 
(e) 



infection: 
(1) Infected persons shall: 

(a) refrain from sexual intercourse unless 
condoms are used; exercise caution 
when using condoms due to possible 
condom failure; 

(b) not share needles or syringes; or any 
other drug-related equipment- 
paraphernalia, or works that may be 
contaminated with blood through 
previous use; 

not donate or sell blood, plasma, 
platelets, other blood products, semen, 
ova, tissues, organs, or breast milk; 
have a skin test for tuberculosis; 
notify future sexual intercourse partners 
of the infection; if the time of initial 
infection is known, notify persons who 
have been sexual intercourse and needle 
partners since the date of infection; 
and, if the date of initial infection is 
unknown, notify persons who have 
been sexual intercourse and needle 
partners for the previous year. 

The attending physician shall: 
give the control measures in Item (1) of 
this Rule to infected patients, in 
accordance with 15A NCAC 19A 
.0210; 

If the attending physician knows the 
identity of the spouse of an 
HIV-infected patient and has not, with 
the consent of the infected patient, 
notified and counseled the spouse 
appropriately, the physician shall list 
the spouse on a form provided by the 
Division of Epidemiology and shall 
mail the form to the Division; the 
Division will undertake to counsel the 
spouse; the attending physician's 
responsibility to notify exposed and 
potentially exposed persons is satisfied 
by fulfilling the requirements of 
Sub-Items (2) (a) and (b) of this Rule; 

(c) advise infected persons concerning 
proper clean-up of blood and other 
body fluids; 

(d) advise infected persons concerning the 
risk of perinatal transmission and 
transmission by breastfeeding. 

(3) The attending physician of a child who is 
infected with HIV and who may pose a 
significant risk of transmission in the 
school or day care setting because of 
open, oozing wounds or because of 



(2) 
(a) 



(b) 



449 



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July 1, 1994 



PROPOSED RULES 



behavioral abnormalities such as biting 
shall notify the local health director. The 
local health director shall consult with the 
attending physician and investigate the 
circumstances. 

(a) If the child is in school or scheduled for 
admission and the local health director 
determines that there may be a 
significant risk of transmission, the 
local health director shall consult with 
an interdisciplinary committee, which 
shall include appropriate school 
personnel, a medical expert, and the 
child's parent or guardian to assist in 
the investigation and determination of 
risk. The local health director shall 
notify the superintendent or private 
school director of the need to appoint 
such an interdisciplinary committee. 

(i) If the superintendent or private school 
director establishes such a committee 
within three days of notification, the 
local health director shall consult with 
this committee. 

(ii) If the superintendent or private school 
director does not establish such a 
committee within three days of 
notification, the local health director 
shall establish such a committee. 

(b) If the child is in school or scheduled for 
admission and the local health director 
determines, after consultation with the 
committee, that a significant risk of 
transmission exists, the local health 
director shall: 

(i) notify the parents; 

(ii) notify the committee; 

(hi) assist the committee in determining 
whether an adjustment can be made to 
the student's school program to 
eliminate significant risks of 
transmission; 

(iv) determine if an alternative educational 
setting is necessary to protect the 
public health; 

(v) instruct the superintendent or private 
school director concerning appropriate 
protective measures to be 
implemented in the alternative 
educational setting developed by 
appropriate school personnel; and 

(vi) consult with the superintendent or 
private school director to determine 
which school personnel directly 
involved with the child need to be 



notified of the HIV infection in order 

to prevent transmission and ensure 

that these persons are instructed 

regarding the necessity for protecting 

confidentiality. 

(c) If the child is in day care and the local 

health director determines that there is 

a significant risk of transmission, the 

local health director shall notify the 

parents that the child must be placed in 

an alternate child care setting that 

eliminates the significant risk of 

transmission. 

(4) When health care workers or other 

persons have a needlestick or nonsexual 

non-intact skin or mucous membrane 

exposure to blood or body fluids that^ if 

the source were infected with HIV, 

would po s e s pose a significant risk of 

HIV transmission, the following shall 

apply: 

(a) When the source person is known: 

(i) The attending physician or 
occupational health care provider 
responsible for the exposed person, if 
other than the attending physician of 
the person whose blood or body fluids 
is the source of the exposure, shall 
notify the attending physician of the 
source that an exposure has occurred. 
The attending physician of the source 
person shall discuss the exposure with 
the source and shall test the source 
for HIV infection unless the source is 
already known to be infected. 
The attending physician of the 
exposed person shall be notified of the 
infection status of the source. 

(ii) The attending physician of the 
exposed person shall inform the 
exposed person about the infection 
status of the source, offer testing for 
HIV infection as soon as possible 
after exposure and at reasonable 
intervals up to one year to determine 
whether transmission occurred, and, if 
the source person was HIV infected, 
give the exposed person the control 
measures listed in Sub-Items (l)(a) 
through (c) of this Rule. The 
attending physician of the exposed 
person shall instruct the exposed 
person regarding the necessity for 
protecting confidentiality. 

(b) When the source person is unknown, 



7 



NORTH CAROLINA REGISTER 



July 1, 1994 



450 



PROPOSED RULES 



the attending physician of the exposed 
person shall inform the exposed person 
of the risk of transmission and offer 
testing for HIV infection as soon as 
possible after exposure and at 
reasonable intervals up to one year to 
determine whether transmission 
occurred, 
(c) A health care facility may release the 
name of the attending physician of a 
source person upon request of the 
attending physician of an exposed 
person. 

(5) The attending physician shall notify the 
local health director when the physician, 
in good faith, has reasonable cause to 
suspect a patient infected with HIV is not 
following or cannot follow control 
measures and is thereby causing a 
significant risk of transmission. Any 
other person may notify the local health 
director when the person, in good faith, 
has reasonable cause to suspect a person 
infected with HIV is not following 
control measures and is thereby causing 
a significant risk of transmission. 

(6) When the local health director is notified 
pursuant to Item (5) of this Rule, of a 
person who is mentally ill or mentally 
retarded, the local health director shall 
confer with the attending mental health 
physician or appropriate mental health 
authority and the physician, if any, who 
notified the local health director to 
develop an appropriate plan to prevent 
transmission. 

(7) The Director of Health Services of the 
North Carolina Department of Correction 
and the prison facility administrator shall 
be notified when any person confined in 
a state prison is determined to be infected 
with HIV. If the prison facility 
administrator, in consultation with the 
Director of Health Services, determines 
that a confined HIV infected person is 
not following or cannot follow prescribed 
control measures, thereby presenting a 
significant risk of HIV transmission, the 
administrator and the Director shall 
develop and implement jointly a plan to 
prevent transmission, including making 
appropriate recommendations to the unit 
housing classification committee. 

(8) The local health director shall ensure that 
the health plan for local jails include 



education of jail staff and prisoners about 
HIV, how it is transmitted, and how to 
avoid acquiring or transmitting this 
infection. 

(9) Local health departments shall provide 
testing for HIV infection with individual 
pre- and post-test counseling at no charge 
to the patient. Third party payors may 
only be billed for HIV counseling and 
testing when such services are provided 
as a part of family planning and maternal 
and child health services. By August 1, 
1991, the State Health Director shall 
designate a minimum of 16 local health 
departments to provide anonymous 
testing. Beginning September 1, 1991, 
only cases of confirmed HIV infection 
identified by anonymous tests conducted 
at local health departments designated as 
anonymous testing sites pursuant to this 
Sub-Item shall be reported in accordance 
with 15A NCAC 19A .0102(a)(3). All 
other cases of confirmed HIV infection 
shall be reported in accordance with 15A 
NCAC 19A .0102(a)(1) and (2). 
Effective September 1, 1994, anonymous 
testing shall be discontinued and all cases 
of confirmed HIV infection shall be 
reported in accordance with 15A NCAC 
19A .0102(a)(1) and (2). 

(10) Appropriate counseling for HIV testing 
shall include individualized pro ond post 
test — counseling — which — provides risk 
assessment, risk reduction guidelines, 
appropriate referrals for medical and 
psychosocial services, and, when the 
person tested is determin ed- found to be 
infected with HIV, control measures. 
Pre-test counseling may be done in a 
group or individually, as long as each 
individual has the o pportunity to ask 
questions in private. Post-test counseling 
must be individualized. 

(11) A local health department or the 
Department may release information 
regarding an infected person pursuant to 
G.S. 130A- 143(3) only when the local 
health department or the Department has 
provided direct medical care to the 
infected person and refers the person to 
or consults with the health care provider 
to whom the information is released. 

(12) Notwithstanding Rule .0201(d) of this 
Section, a local or state health director 
may require, as a part of an isolation 



451 



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PROPOSED RULES 



order issued in accordance with G.S. 
130A-145, compliance with a plan to 
assist the individual to comply with 
control measures. The plan shall be 
designed to meet the specific needs of the 
individual and may include one or more 
of the following available and appropriate 
services: 

(a) substance abuse counseling and 
treatment; 

(b) mental health counseling and treatment; 
and 

(c) education and counseling sessions about 
HIV, HIV transmission, and behavior 
change required to prevent 
transmission. 

(13) The Division of Epidemiology shall 
conduct a partner notification program to 
assist in the notification and counseling of 
partners of HIV infected persons. All 
partner identifying information obtained 
as a part of the partner notification 
program shall be destroyed within two 
years. 

Statutory Authority G.S. 130A-133; 130A-135; 
130A-144; 130A-145; 130A-148(h). 

0203 CONTROL MEASURES - 
HEPATITIS B 

(a) The following are the control measures for 
lepatitis B infection. The infected persons shall: 

(1) refrain from sexual intercourse unless 
condoms are used except when the 
partner is known to be infected with or 
immune to hepatitis B; 

(2) not share needles or syringes; 

(3) not donate or sell blood, plasma, 
platelets, other blood products, semen, 
ova, tissues, organs, or breast milk; 

(4) if the time of initial infection is known, 
identify to the local health director all 
sexual intercourse and needle partners 
since the date of infection; and, if the 
date of initial infection is unknown, 
identify persons who have been sexual 
intercourse or needle partners during 
the previous six months; 

(5) for the duration of the infection, notify 
future sexual intercourse partners of the 
infection and refer them to their 
attending physician or the local health 
director for control measures; 

(6) be tested six months after diagnosis to 
determine if they are chronic carriers, 



annually for two years thereafter if they 
remain infected, and when necessary to 
determine appropriate control measures 
for persons exposed pursuant to 
Paragraph {3) £b) of this Rule, 
(b) The following are the control measures for 
persons reasonably suspected of being exposed: 

(1) when a person has had sexual 
intercourse exposure to hepatitis B 
infection, the person shall be given 
hepatitis B immune globulin or immune 
globulin, 0.06 ml/kg, IM as soon as 
possible but no later than two weeks 
after the last exposure; 

(2) when a person is a household contact, 
sexual intercourse or needle sharing 
contact of a person who has remained 
infected with hepatitis B for six months 
or longer, the partner or household 
contact, if susceptible and at risk of 
continued exposure, shall be vaccinated 
against hepatitis B; 

(3) when a health care worker or other 
person has a needlestick, non-intact 
skin, or mucous membrane exposure to 
blood or body fluids that^ if the source 
were infected with the hepatitis B virus, 
would po s es pose a significant risk of 
hepatitis B transmission, the following 
shall apply: 

(A) when the source is known, the source 
person shall be tested for hepatitis B 
infection, unless already known to be 
infected; 

(B) when the source is infected with 
hepatitis B and the exposed person is: 

(i) vaccinated, the exposed person 
shall be tested for anti-HBs. If 
anti-HBs is less than ten SRU by 
RIA or negative by EIA, the 
exposed person shall be given 
hepatitis B immune globulin, 0.06 
ml/kg, IM immediately and a 
single does of hepatitis B vaccine 
within seven days; 

(ii) not vaccinated, the exposed 
person shall be given hepatitis B 
immune globulin, 0.06 ml/kg, IM 
immediately and, if at high risk 
for future exposure, begin 
vaccination with hepatitis B 
vaccine within seven days; 

(C) when the source is unknown and the 
exposed person is: 

(i) vaccinated, no intervention is 



7 



NORTH CAROLINA REGISTER 



July 1, 1994 



452 



PROPOSED RULES 



necessary; 
(ii) not vaccinated, begin vaccination 

with hepatitis B vaccine within 

seven days if at high risk for 

future exposure. 
(4) infants born to infected mothers shall be 
given hepatitis B immune globulin, 0.5 
ml, IM as soon as maternal infection is 
known and infant is stabilized; 
vaccinated against hepatitis B beginning 
as soon as possible; and tested for 
HBsAg at 12-15 months of age. 

(c) The attending physician shall advise all 
patients known to be at high risk, including 
injection drug users, men who have sex with men, 
hemodialysis patients, and patients who receive 
frequent transfusions of blood products, that they 
should be vaccinated against hepatitis B if 
susceptible. 

(d) The following persons shall be tested for 
hepatitis B infection: 

(1) pregnant women unless known to be 
infected; and 

(2) donors of blood, plasma, platelets, 
other blood products, semen, ova, 
tissues, or organs. 

Statutory Authority G.S. 130A-135; 130A-144. 

.0204 CONTROL MEASURES - SEXUALLY 
TRANSMITTED DISEASES 

(a) Local health departments shall provide 
diagnosis, testing, treatment, follow-up, and 
preventive services for syphilis, gonorrhea, 
chlamydia, nongonococcal urethritis, mucopurulent 
cervicitis, chancroid, lymphogranuloma venereum, 
and granuloma inguinale. These services shall be 
provided upon request and at no charge to the 
patient. 

(b) Persons infected with, exposed to, or 
reasonably suspected of being infected with 
gonorrhea, chlamydia, non-gonococcal urethritis, 
and mucopurulent cervicitis shall: 

(1) Refrain from sexual intercourse until 
examined and diagnosed and treatment 
is completed, and all lesions are healed; 

(2) Be tested, treated, and re-evaluated in 
accordance with the STD Treatment 
Guidelines published by the U.S. Public 
Health Service. The recommendations 
contained in the STD Treatment 
Guidelines shall be the required control 
measures for testing, treatment, and 
follow-up for gonorrhea, chlamydia, 
nongonococcal urethritis, and 



mucopurulent cervicitis, and are 
incorporated by reference including 
subsequent amendments and editions. 
A copy of this publication is on file for 
public viewing with the HTV/STD 
Control Branch located at 225 N. 
McDowell Street, Cooper Building, 
Raleigh, N.C. 27611-7687 or a copy 
may be obtained free of charge by 
writing the fflV/STD Control Branch, 
P.O. Box 27687, Raleigh, N.C. 
27611-7687, and requesting a copy. 
However, urethral Gram stains may be 
used for diagnosis of males rather than 
gonorrhea cultures unless treatment has 
failed; 
(3) Notify all sexual partners from 30 days 
before the onset of symptoms to 
completion of therapy that they must be 
evaluated by a physician or local health 
department, 
(c) Persons infected with, exposed to, or 
reasonably suspected of being infected with 
syphilis, lymphogranuloma venereum, granuloma 
inguinale, and chancroid shall: 

(1) Refrain from sexual intercourse until 
examined and diagnosed and treatment 
is completed, and all lesions are healed; 

(2) Be tested, treated, and re-evaluated in 
accordance with the STD Treatment 
Guidelines published by the U.S. Public 
Health Service. The recommendations 
contained in the STD Treatment 
Guidelines shall be the required control 
measures for testing, treatment, and 
follow-up for syphilis, 
lymphogranuloma venereum, granuloma 
inguinale, and chancroid, except that 
chancroid cultures shall not be 
required; 

(3) Give names to a disease intervention 
specialist employed by the local health 
department or by the HIV/STD Control 
Branch for contact tracing of all sexual 
partners and others as listed in this 
Rule: 

(A) for syphilis: 

(i) congenital - all immediate family 
members; 

(ii) primary - all partners from three 
months before the onset of 
symptoms to completion of 
therapy and healing of lesions; 

(iii) secondary - all partners from six 
months before the onset of 



453 



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PROPOSED RULES 



symptoms to completion of 
therapy and healing of lesions; 
and 
(iv) latent - all partners from 12 
months before the onset of 
symptoms to completion of 
therapy and healing of lesions 
and, in addition, for women with 
late latent, spouses and children; 

(B) for lymphogranuloma venereum: 

(i) if there is a primary lesion and no 
buboes, all partners from 30 days 
before the onset of symptoms to 
completion of therapy and healing 
of lesions; and 

(ii) if there are buboes all partners 
from six months before the onset 
of symptoms to completion of 
therapy and healing of lesions; 

(C) for granuloma inguinale - all partners 
from three months before the onset of 
symptoms to completion of therapy 
and healing of lesions; and 

(D) for chancroid - all partners from ten 
days before the onset of symptoms to 
completion of therapy and healing of 
lesions. 

(d) All persons evaluated or reasonably 
ispected of being infected with any sexually 
ansmitted disease shall be tested for syphilis, 
icouraged to be tested confidentially for HIV, 
nd counseled about how to reduce the risk of 
.-quiring sexually transmitted disease, including 
le use of condoms. 

(e) All pregnant women shall be tested for 
^philiSj. chlamydia, and gonorrhea early in 
regnancy and in the third trimester. Pregnant 
omen at high risk for exposure to syphilis^ 
ilamydia, and gonorrhea shall also be tested for 



philis^ chlamydia, and gonorrhea at the time of 
slivery. 

(f) All newborn infants shall be treated 
x»phylactically against gonococcal ophthalmia 
;onatorum in accordance with the STD Treatment 
uidelines published by the U. S. Public Health 
rvice. The recommendations contained in the 
IT) Treatment Guidelines shall be the required 
rophylactic treatment against gonococcal 
rtrthalmia neonatorum. 

atutory Authority G.S. 130A-135; 130A-144. 

1205 CONTROL MEASURES - 
TUBERCULOSIS 

(a) The local health director shall promptly 



investigate all cases of tuberculosis disease and 
their contacts in accordance with the provisions of 
Control of Communicable Diseases in Man. 
Control of Communicable Diseases in Man is 
hereby incorporated by reference including 
subsequent amendments and editions. Copies of 
this publication are available from the American 
Public Health Association, Department JE, 1015 
15th Street, N.W., Washington, DC 20005 for a 
cost of fifteen dollars ($15.00) each plus three 
dollars ($3.00) shipping and handling. A copy is 
available for inspection in the Communicable 
Disease Control Section, Cooper Memorial Health 
Building, 225 N. McDowell Street, Raleigh, North 
Carolina 27611-7687. 

(b) The following persons shall be skin tested 
for tuberculosis and given appropriate clinical, 
microbiologic and x-ray examination in accordance 
with the "Diagnostic Standards and Classification 
of Tuberculosis," published by the American 
Thoracic Society, which is incorporated by 
reference including subsequent amendments and 
editions: 

(1) Household and other close contacts of 
active cases of tuberculosis; 

(2) Persons reasonably suspected of having 
tuberculosis disease; 

(3) Inmates in the custody of, and staff 
with direct inmate contact in, the 
Department of Corrections upon 
incarceration or employment, and 
annually thereafter; 

(4) Patients and staff in long term care 
facilities upon admission or 
employment and annually thereafter; 

(5) Clients and staff in residential facilities 
operated by the Department of Human 
Resources upon admission or 
employment and annually thereafter. 

A copy of "Diagnostic Standards and Classification 
of Tuberculosis" is available by contacting the 
Department of Environment, Health, and Natural 
Resources, Tuberculosis Control Branch, Post 
Office Box 27687, Raleigh, North Carolina 
2761 1-7687 at no charge. 

(c) Treatment and follow-up for tuberculosis 
infection or disease shall be in accordance with 
"Treatment of Tuberculosis and Tuberculosis 
Infection in Adults and Children, " published by the 
American Thoracic Society, which is incorporated 
by reference including subsequent amendments and 
editions. Copies of this publication are available 
by contacting the Department of Environment, 
Health, and Natural Resources, Tuberculosis 
Control Branch, Post Office Box 27687, Raleigh, 



NORTH CAROLINA REGISTER 



July 1, 1994 



454 



PROPOSED RULES 



North Carolina 27611-7687 at no charge. 
However, liver function testing shall not be 
required for persons under 35 years of age with no 
symptoms of liver disease. 

(d) The attending physician shall instruct all 
patients treated for tuberculosis regarding the 
potential side effects of the medications prescribed 
and to promptly notify the physician if side effects 
occur. 

(e) Persons with pulmonary or laryngeal 
tuberculosis who are known or reasonably 
suspected to be infected with Mycobacterium 
tuberculosis resistant to the usual medications used 
for treatment shall be restricted to their homes, an 
appropriate health care facility, or in some other 
appropriate manner to prevent transmission until: 

(1) they are free of cough; or 

(2) three consecutive smears or cultures are 
negative; or 

(3) they have been compliant for at least 
three weeks on medications to which 
the organism is known to be susceptible 
and have responded clinically. 

(f) Persons with pulmonary or laryngeal 
tuberculosis who are hospitalized, in prison, or a 
longterm care facility, shall be placed in 
respiratory isolation until: 

(1) they are free of cough; or 

(2) three consecutive smears or cultures are 
negative; or 

(3) been compliant for at least three weeks 
on medications to which the organism 
is reasonably thought to be susceptible 
and have responded clinically. 

(g) Persons with known or suspected pulmonary 
tuberculosis who work in a health care or 
institutional setting or who work in or attend child 
daycare or with known or suspected laryngeal 
tuberculosis shall be restricted to their homes, an 
appropriate health care facility, or in some other 
appropriate manner to prevent transmission until: 

(1) they are free of cough; or 

(2) three consecutive smears or cultures are 
negative; or 

(3) they have been compliant for at least 
three weeks on medications to which 
the organism is reasonably thought to 
be susceptible and have responded 
clinically. 

(h) Persons known to be infected with 
tuberculosis who are over 50 years of age and 
have risk factors for HIV infection and those 50 
years of age and younger shall be tested for HIV 
infection. 

(i) At least two of the following skin test 



antigens shall be used as controls for anergy when 



a TB skin test is administered to a person known 
to be infected with HIV and who has a CD4+ 
level less than 500 cells/mm3 or 19%: 

(1) Mumps; 

(2) Candida; or 

(3) Tetanus toxoid. 

(j) Laboratories that culture sputum or other 
body fluids or tissues for Mycobacteria shall 
measure direct susceptibilities as the percent of 
colonies resistant to at least isoniazid. rifampin. 
streptomycin, and ethambutol on all initial 



specimens submitted for culture that are positive 
for AFB on smear. 

Statutory Authority G.S. 130A-135; 130A-144. 

.0208 CONTROL MEASURES - 

SHIGELLOSIS AND E. coli 0157:H7 

The following are the control measures for 

shigellosis and E. coli 0157:H7: 

(1) When a case occurs in a person who 

attends or works in a day care center: 



la} 



All persons who attend the center and 
who have or have had diarrhea in the 
previous month, all classroom contacts 



of the case, and all staff in the center 
shall be immediately cultured: 
(b) An investigation shall be conducted to 
identify other possible cases throughout 
the center; 



Id) 



All persons with disease or suspected 
disease shall be cohorted; 
Staff shall be assigned to care for 
children in the cohorted group and may 
not care for children outside the 
cohorted group until they are 
reassigned, without symptoms and have 



had two negative cultures at least 24 
hours apart and 48 hours off antibiotics 



ie) 



ifi 



i£l 



Cases and suspected cases may be 

released from cohorting when two 

negative cultures have been obtained at 

least 24 hours apart and 48 hours off 

antibiotics; 

All persons with shigellosis shall be 

treated with an antibiotic listed for 

shigellosis in Control of Communicable 

Diseases in Man; 

All persons with known or suspected 

shigellosis or JL coH 0157:H7 shall be 

excluded from foodhandling until two 

negative cultures have been obtained at 

least 24 hours apart and 48 hours off 

antibiotics; 



455 



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PROPOSED RULES 



(h) Persons who are infected or suspected 
of being infected with shigella or L\ 
coli 0157:H7 and who are well enough 
to attend shall not be excluded from 
day care. 

(2) When a case or suspected case occurs in 
a foodhandler or health care worker: 

(a) The person shall be excluded from 
foodhandling or direct patient care until 
symptoms resolve and two negative 
cultures have been obtained at least 24 
hours apart and 48 hours off antibiotics: 

(b) However, health care workers may 
return to direct patient care if they are 
asymptomatic, practice good hygiene 
and do not care for high risk patients 
(e-g- neonates, immunocompromised 
patients). 

(3) When a case of shigella or TL coli 
0157:H7 occurs, all household and other 
close contacts who attend or work in day 
care or who are foodhandlers or health 
care workers shall be interviewed for 
symptoms in the previous month and, if 
symptomatic, cultured. 

Statutory Authority G.S. 130A-135; 130A-144. 

.0209 LABORATORY TESTING 

All laboratories are required to do the following: 

(1) When Neisseria meningitis is isolated, 
test the organism for specific serogroup 
or send the isolate to the State Public 
Health Laboratory for serogrouping; and 

(2) When a stool culture is requested on a 
specimen with occult blood or from a 
person with bloody diarrhea, culture the 
stool for E. coli 0157:H7 or send the 
specimen to the State Public Health 
Laboratory. 

Statutory Authority G.S. 130A-139. 

SECTION .0400 - IMMUNIZATION 

0401 DOSAGE AND AGE REQUIREMENTS 
FOR IMMUNIZATION 

(a) Every individual in North Carolina required 
to be immunized pursuant to G.S. 130A-152 
through 130A-157 shall be immunized against the 
following diseases by receiving the specified 
minimum doses of vaccines by the specified ages: 
(1) diphtheria, tetanus, and whooping 
cough vaccine — five doses: three doses 
by age one year seven months and two 



booster doses, one in the second year of 
life by age 19 months and the second 
on or after the fourth birthday and 
before enrolling in school (K-l) for the 
first time; 

(2) oral poliomyelitis vaccine- - three doses 
of trivalcnt type by age two year s four 
doses: two doses of trivalent type by 
age five months: a third dose trivalent 
type by age 19 months and a booster 
dose of trivalent type on or after the 
fourth birthday and before enrolling in 
school (K-l) for the first time; two 
doses of enhanced-potency inactivated 
poliomyelitis vaccine may be substituted 
for two doses of oral poliomyelitis 
vaccine; 

(3) measles (rubeola) , mumps and rubella 
vaccine — two doses of live, attenuated 
vaccine* administered at least 30 days 
apart: one dose by age two years on or 
after age 12 months and before age 16 
months and a second dose before 
enrolling in school (K-l) for the first 
time; 

(4) rubella vaccine ~ one dose of live, 
attenuated vaccine on or after age 12 
months and before age 16 months; 

(5) mumps vaccine ~ one dose of live, 
attenuated vaccine administered on or 
after age 12 months and before age 16 
months; 

{4) £6} Hemophilus Haemophilus 

influenzae, b, conjugate vaccine — three 
doses of HbOC or two doses of 
PRP-OMP by age eae — year seven 
months and a booster dose of any type 
by the second birthday age 16 months ; 
and 

(7) hepatitis B vaccine — three doses 
by age one year. 
Notwithstanding the requirements of 
Paragraph (a) of this Rule: 

(1) An individual who has attained his or 
her seventh birthday without having 
been immunized against whooping 
cough shall not be required to be 
immunized with a vaccine preparation 
containing whooping cough antigen. 

(2) An individual who has been 
documented by serologic testing to have 
a protective antibody titer against 
rubella shall not be required to receive 
rubella vaccine. 

(3) An individual who has been diagnosed 



& 



(b) 



9:7 



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456 



PROPOSED RULES 



prior to January 1, 1994, by a 
physician licensed to practice medicine 
as having measles (rubeola) disease 
shall not be required to receive measles 
vaccine. 

(4) An individual attending school who has 
attained his or her 18th birthday shall 
not be required to receive oral polio 
vaccine. 

(5) An individual born prior to 1957 shall 
not be required to receive measles 
vaccine. An individual who has 
attained his or her fiftieth birthday shall 
not be required to receive rubella 
vaccine. An individual who entered a 
college or university after his or her 
thirtieth birthday and before February 
1, 1989 shall not be required to meet 
the requirement for rubella vaccine. 

(6) Except as provided in Subparagraph 

<b)<8) ef — this Rale^ the The 

requirements for mumps vaccine^— ftfid 
for booster do s es of diphtheria, tetanus, 
and whooping cough vaccine and oral 
poliomyelitis vaccine, shall not apply to 
individuals who enrolled for the first 
time in the first grade before July 1, 

1987 or in college or university before 
July 1. 1994. 

(7) Individuals who receive the first booster 
dose of diphtheria, tetanus, and 
whooping cough vaccine on or after the 
fourth birthday shall not be required to 
have a second booster dose. 
Individuals who receive the third dose 
of oral poliomyelitis vaccine on or after 
the fourth birthday shall not be required 
to receive a fourth dose. 

(8) Individual s — attending — a — college — ©f 
university — s hall — be — required — te — have 
three dosco of diphtheria/tetanu s toxoid 
of which one must have been within the 
last ten year s . The requirements for 
booster doses of diphtheria, tetanus, 
and whooping cough vaccine and oral 
poliomyelitis vaccine shall not a pply to 
individuals who enrolled for the first 
time in the first grade before July j^ 
1987. However, individuals attending 
a college or university shall be required 
to have three doses of diphtheria/tetanus 
toxoid of which one must have been 
within the last 10 years. 

(9) Individuals born before October 1, 

1988 shall not be required to be 



vaccinated against Hemophilu s 
Haemophilus influenzae, b. Individuals 
who receive the first dose of 
Hemophilus Haemophilus influenzae, b, 
vaccine on or after 12 months of age 
and before 15 months of age shall be 
required to have only two doses of 
HbOC or PRP-OMP. Individuals who 
receive the first dose of Hemophilu s 



Haemophilus influenzae, b, vaccine on 
or after 15 months of age shall be 
required to have only one dose of any 
of the Hemophilu s Haemophilus 



(10) 



(ID 



influenzae conjugate vaccines, including 
PRP-D. However, no individual who 
has passed their fifth birthday shall be 
required to be vaccinated against 
Hemophilu s Haemophilus influenzae, b. 
Individuals born on or before July 1, 
1994 shall not be required to be 
vaccinated against hepatitis B. 
Except as provided in Subparagraph (b) 



(12) of this Rule, the The requirement 
for a second dose of measles , mump s 



and rubella vaccine shall not apply to 
individuals who enroll in school (K-l) 
or in college or university for the first 
time on or before July 1, 1994. 



fi3) Individual s who enroll in a college or 



university for the first time after July 1 
199 4 shall be required to have a second 



dose of measles, mumps and rubella 
vaccine. 

Statutory Authority G.S. 130A-1 52(c); 130A-155.1. 
****************** 

Notice is hereby given in accordance with G.S. 
150B-21.2 that EHNR - Commission for Health 
Services intends to amend rules cited as ISA 
NCAC 19C.0601 - .0607, and adopt rule cited as 
15A NCAC 19C .0608. 

1 he proposed effective date of this action is 
October 1, 1994. 

1 he public hearing will be conducted at 1:30 
p.m. on July 21, 1994 at the Archdale Building. 
Ground Floor Hearing Room, 512 North Salisbury 
Street, Raleigh, N. C. 



457 



9:7 



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July 1, 1994 



PROPOSED RULES 



Reason for Proposed Action: 
ISA NCAC 19C .0601 - These consist of defini- 
tions for clarification purposes. 
ISA NCAC 19C .0602 - Most of these revisions 
are for clarification purposes. Have also detailed 
and clarified air monitor accreditation require- 
ments. Revised application form information 
requirements because the program is incorporating 
an Accreditation Photo ID Card system. Clarified 
supervising air monitor notification requirements 
for accredited air monitors that are not ClHs. 
ISA NCAC 19C .0603 - Enables the Branch to 
evaluate course curriculum and examination for 
courses that have EPA or EPA-state approval. 
Requires successful completion of an examination 
for refresher courses in order to improve the 
quality of refresher training. Requires training 
providers to meet requirements to promote reci- 
procity within EPA Region IV and to conform to 
EPA guidelines for training requirements. Revised 
notification requirements because notification is 
necessary to review applications for possible 
accreditation fraudulence and to promote reciproc- 
ity within EPA Region IV. 

ISA NCAC 19C .0604 - Clarifies management 
plan requirements. Adds a submittal time frame 
for reinspection plans needed to ensure that rein- 
spections are performed in-line with EPA AHERA 
requirements. 

15A NCAC 19C .0605 - Clarifies existing notifica- 
tion requirements for different types of removals 
and existing revision notification requirements. 
Requires an accredited supervisor to supervise 
removal activities, which is already a requirement; 
however, it is not currently written in the rules as 
they exist. 

ISA NCAC 19C .0606 - Reduces the fees for 
removal of floor tiles and ceiling tiles from $. 15 
per square foot or 1% of contract price, whichever 
is greater to $.10 per square foot or 1% of con- 
tract price, whichever is greater. Have also 
eliminated the permit fee requirement for residing 
homeowners. Clarifies demolition for permit fee 
purposes. 

15A NCAC 19C .0607 - Adds air sampling fre- 
quency and need basis requirements. Adds addi- 
tional analysis requirements and specifies laborato- 
ry proficiency requirements for sample analysis. 
Addresses possible conflict of interest between air 
monitor and contractor for the benefit of the 
building owner. Addresses the need for prepara- 
'ion of an abatement project monitoring plan for 
'he benefit of the building owner. Addresses air 
nonitor accountability for all visits and sampling 



conducted on any project. These revisions are 
needed to ensure that all areas are properly 
monitored for exposure levels during the removal 
as well as ensure that all areas are properly 
cleared after completion of the removal in order to 
prevent unnecessary asbestos exposure for the 
workers as well as the public. 
ISA NCAC 19C .0608 - This proposed new rule 
addresses instructor qualifications. The rules do 
not currently address this need. Federal regula- 
tions require that instructors be qualified; there- 
fore, this rule is needed in order to ensure that 
courses are conducted by qualified instructors as 
required by EPA. Also, to promote reciprocity 
within EPA Region IV states. 

Ksomment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to Grady L. 
Balentine, Department of Justice, P. O. Box 629, 
Raleigh, NC 27602-0629. All written comments 
must be received by August 1, 1994. Persons who 
wish to speak at the hearing should contact Mr. 
Balentine at (919) 733-4618. Persons who call in 
advance of the hearing will be given priority on 
the speaker 's list. Oral presentation lengths may 
be limited depending on the number of people that 
wish to speak at the public hearing. Only persons 
who have made comments at a public hearing or 
who have submitted written comments will be 
allowed to speak at the Commission meeting. 
Comments made at the Commission meeting must 
either clarify previous comments or proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL 
INTERESTED AND POTENTIALLY AFFECTED 
PERSONS, GROUPS, BUSINESSES, 
ASSOCIATIONS, INSTITUTIONS OR AGENCIES 
MAKE THEIR VIEWS AND OPINIONS KNOWN 
TO THE COMMISSION FOR HEALTH SERVICES 
THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS, WHETHER THEY 
SUPPORT OR OPPOSE ANY OR ALL 
PROVISIONS OF THE PROPOSED RULES. THE 
COMMISSION MAY MAKE CHANGES TO THE 
RULES AT THE COMMISSION MEETING IF THE 
CHANGES COMPLY WITH G.S. 150B-21.2(f). 

CHAPTER 19 - HEALTH: EPIDEMIOLOGY 

SUBCHAPTER 19C - OCCUPATIONAL 



" 



NORTH CAROLINA REGISTER 



July 1, 1994 



458 



PROPOSED RULES 



HEALTH 

SECTION .0600 - ASBESTOS HAZARD 
MANAGEMENT PROGRAM 

.0601 GENERAL 

(a) The definitions contained in G.S. 130A-444 
and the following definitions shall apply 
throughout this Section: 

(1) "Abatement Designer" means a person 
who is directly responsible for planning 
all phases of an asbestos abatement 
design from abatement site preparation 
through complete disassembly of all 
abatement area barriers. In addition to 
meeting the accreditation requirements 
of Rule .0602(c)(5) of this Section, the 
abatement designer may be subject to 
the licensure requirements for a 
Registered Architect as defined in G.S. 
83A or a Professional Engineer as 
defined in G.S. 89C. 

(2) "Abatement Project Monitoring Plan" 
means a written project-specific plan 
for conducting visual inspections and 
ambient and clearance air sampling. 

(3) f3) "Air Monitor" means a person who 
performs visual in s pections, takes air 
samples — fef — abatement — clearance 
activities or takes ambient air samples 
in buildings implements the abatement 
project monitoring plan. collects 
ambient and clearance air samples, 
performs visual inspections, or 
monitors and evaluates asbestos 
abatement projects. 

(4) "Asbestos Abatement Design" means a 
written or graphic plan prepared by an 
accredited abatement designer 
specifying how an asbestos abatement 
project will be performed, and includes, 
but is not limited to. scope of work and 
technical specifications. The asbestos 
abatement designer's signature and 
accreditation number shall be on all 
such abatement designs. 

(5) "Completion Date" means the date on 
which all activities on a permitted 
asbestos removal requiring the use of 
accredited workers and supervisors are 
complete. including the complete 
disassembly of all removal area 
barriers. 

(6) "Emergency Renovation Operation" as 
defined in 40 CFR Part 61.141. 



ID 



18} 



121 



(10) 



Oil 



(12) 



(13) 



(14) 
(15) 



(16) 



"Inspector" means a person who 
examines buildings for the presence of 
asbestos containing materials, collects 
bulk samples or conducts physical 



assessments of the asbestos containing 

materials. 

"Installation" means any building or 

structure or group of buildings or 

structures under the control of the same 

owner or operator. 

t±) "Management Consultant" means a 

persons who performs only 

administration or oversight services 

before, during or after asbestos 

abatement activities. 

"Management Planner" means a person 

who interprets inspection reports. 



conducts hazard assessments of asbestos 



containing materials or prepares written 

management plans. 

"Nonscheduled Asbestos Removal" 



means an asbestos removal required by 
the routine failure of equipment, which 
is expected to occur within a given 
period based on past operating 
experience, but for which an exact date 
cannot be predicted. 
"Person" — means — as — defined in G.S. 



130A2(7). 

(3) "Program" means the Asbestos 
Hazard Management Branch within the 
NC Department of Environment, 
Health, and Natural Resources. 

(4) "Public Area" means as defined in 
G.S. 130A-444(7). Any area to which 
access by the general public is usually 
prohibited, or is usually limited to 
access by escort only, shall not 
constitute a "public area. " 
"Regulated Asbestos Containing 



Material" as defined in 40 CFR Part 

61.141. 

"Start Date" means the date on which 



activities on a permitted asbestos 



removal project requiring the use of 
accredited workers and supervisors 



begin, including removal area isolation 



and preparation or any other activity 



which may disturb asbestos containing 

materials. 

"Supervising Air Monitor" means a 

person who prepares a written 

abatement project monitoring plan and 

implements the plan or ensures that the 

plan is implemented by an air monitor 



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PROPOSED RULES 



working under his supervision. The 
supervising air monitor directs, 
coordinates and a pproves all activities 
of air monitors working under his 
supervision. 

(17) "Supervisor" means a person who is a 
'competent person' as defined in 29 
CFR 1926.58fb') and adopted by JJ 
NCAC 7C .0101, and who is an 
'on-site representative' as defined in 
40 CFR Part 61.145(c)(8). and who 
performs the duties specified therein. 

(18) "Under the direct supervision" means 
working under the immediate guidance 
of an accredited individual who is 
responsible for all activities performed. 

(19) "Worker" means a person who 
performs asbestos abatement under the 
direct supervision of an accredited 
supervisor. 

(20) (6) "Working day" means Monday 
through Friday. Holidays falling on 
any of these days are included in the 
definition. 

(b) The Aabefltos Hazard Emergency Response 
Act, P.L. 99 519 and the Environmental Protection 
Agency rules 4 CFR Part 763 and accompanying 
appendices, — are — adopted — by — reference — m 
accordance — with — Gt&. — 150B 1 4 (c). Asbestos 
management activities conducted pursuant to this 
Section shall comply with "AHERA" as defined in 
G.S. 130A-444(1) and 40 CFR Part 763, Subpart 
E and Appendices, as a pplicable. 40 CFR Part 
763. Subpart E is hereby incorporated by 
reference, including any subsequent amendments 
and editions. This document is available for 
inspection at the Department of Environment. 
Health, and Natural Resources. Asbestos Hazard 
Management Branch. 441 North Harrington Street. 



Raleigh. North Carolina 27603. Copies may be 
obtained from the Government Printing Office by 
writing to the Superintendent of Documents. 
Government Printing Office. P.O. Box 371954, 
Pittsburgh. PA 15250-7954. at a cost of 
twenty-six dollars ($26.00). 



Statutory Authority G.S. 130A-5(3); P.L. 99-519. 

.0602 ACCREDITATION 

(a) No person shall perform asbestos 
management activities until that person has been 
accredited by the Program in the appropriate 
accreditation category, except as provided for in 
G.S. 130A-447, (b) and (c). 

(b) An applicant for accreditation shall meet the 



provisions of the "EPA Model Contractor 
Accreditation Plan" contained in 40 CFR Part 763 
(Subpart E, appendix Appendix C) and has 
successfully completed applicable training courses 
approved by the Program pursuant to Rule .0603 
of this Section. 

(c) In addition to the requirements in Paragraph 
(b) of this Rule , an applicant^ other than for the 
worker category, shall meet the following: 

(1) an applicant for initial accreditation 
shall have successfully completed an 
approved initial training course for the 
specific discipline within the 12 months 
immediately preceding application^ e^ 
if If initial training was completed more 
than 12 months prior to application, the 
applicant shall have successfully 
completed an approved refresher 
training course for the specific 
discipline at least every 44 24 months 
from the date of completion of initial 
training to the date of application; 

(2) an inspector shall have: 

(A) a high school diploma or equivalent; 
and 

(B) at least three months of asbestos 
related experience as^ or under the 
direct supervision of A an accredited 
inspector , or at least one month of 

employment as aa accredited 

s upervi s or, — or at least — s ix month s 
employment as an accredited worker , 
or equivalent experience; 

(3) a management planner shall have a high 
school diploma or equivalent and shall 
be an accredited inspector; 

(4) a supervisor shall have: 

(A) a high school diploma or equivalent; 
except that this requirement shall not 
apply to supervisors that were 
accredited on November 1, 1989; and 

(B) at least three months of asbestos 
related experience as, or under the 
direct supervision of, an accredited 
supervisor or at least three months 
employment as an asbestos work , or 
equivalent experience; 

(5) an abatement designer shall have: 

(A) a high school diploma or equivalent; 
and 

(B) at least three months of asbestos 
related experience as, or under the 
direct supervision of, an accredited 
abatement designer or at least three 
months employment as an accredited 



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460 



PROPOSED RULES 



supervisor , or equivalent experience; 

(6) a management consultant shall: 

(A) be a professional anginecr, registered 
architect — ef — a — certified — indu s trial 

hygicnist ef have few years 

experience as an obatement designer 
ef — s upervi s or have a high school 
diploma or equivalent; 

(B) have one year experience in asbestos 
related work within the past four 
years aad — be — accredited — as — a 
management planner and designer. ; 
and 

(C) meet all initial and refresher training 
requirements of this Section for 
inspector and management planner, as 
well as either supervisor or abatement 
designer; 

(7) an air monitor shall meet the following 
requirements: 

(A) Education and Work Experience: 

£i) a high school diploma or 
equivalent; 

(ii) three months of asbestos air 
monitoring experience as, or 
under the direct supervision of, an 
accredited air monitor or 
equivalent within 12 months prior 
to a pplying for accreditation; 

(B) Training Requirements: 

(i) complete a Program approved 
NIOSH 582 or Program approved 
NIOSH 582 equivalent and meet 
the initial and refresher training 
requirements of this Rule for 
supervisors. A Program a pproved 
project monitor refresher course 
may be substituted for the 
supervisor refresher course; or 
meet the initial and refresher 
training requirements of this Rule 
for a Program approved five-day 
project monitor course and a 
Program approved annual 
refresher course; 



im 



air monitors with a valid 
accreditation on October 1^ 1994 
shall have until October 1_, 1995 
to meet the training requirements 
for air monitors set forth in this 
Paragraph; 
(C) Professional Status: 

£i] An air monitor accredited on or 
after February J_i 1991. or an air 
monitor accredited prior to that 



date who has not continuously 
maintained accreditation, shall be 
a Certified Industrial Hygienist or 
work only under a Certified 
Industrial Hygienist who is an 
accredited air monitor, who 
serves as the supervising air 
monitor; or 
(ii) An air monitor accredited prior to 
February l± 1991. who has 
continuously maintained 
accreditation shall be a Certified 
Industrial Hygienist. Professional 
Engineer, or Registered Architect. 
or work only under a Certified 
Industrial Hygienist. Professional 
Engineer, or Registered Architect 
who is accredited as an air 
monitor, and who serves as a 
supervising air monitor. 
{A) — until February 1, 1991, be a certified 

industrial hygicni s t, professional 

engineer, or registered architect, or 
work only under the supervi s ion of a 

certified indu s trial hygieni s t, 

professional — engineer, — or registered 
architect that i s accredited a s an air 
monitor. — On or after February 1, 
1991, — as — air monitor s hall be a 
certified industrial hygicni s t or work 
only — ufldef — the — supervision — of a 
certified industrial hygi e ni s t that is on 

accredited — mr — monitor. The 

s upervi s ing aif monitor sfeaH 

coordinate and sign off on all phases 
of the air monitoring project. — The 
s upervi s ing air monitor may be a 
contract consultant. Thi s requirement 

s hall net — apply te accredited 

supervising air monitor s meeting th e 
provi s ion s — ef — Subparagraphs 
(c)(7)(B) (D) of this Rule as of 
February 1, 1991; 
{B) — have completed a Program approved 
National — Institute — ef- — Occupational 
Sofcty and Health 5 8 2 training cours e 
or Program approved equivalent; 
{€) — have — throe — month s — asbestos — aif 
monitoring — related — experienc e — er 
equivalent within 12 month s prior to 
applying for accreditation; and 
(©) — have — a — high — s chool — diploma — ef 
equivalent. 
(d) To obtain accreditation, the applicant shall 
submit, or cause to be submitted, to the Program 



461 



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July 1, 1994 



PROPOSED RULES 



the following information te — the Program on 
application forma provided by the Program : 

(1) a completed a pplication on a form 

provided by the Program with the 

following information: 

(A) £B full name and social security 
number of applicant; 

{2) name, address and telephone number of 

employer; 

Q) discipline(s) applied for; 

{4) date(s) of training cour s e( s ) for each 

discipline; 

{§) name of course attended; 

{6) training agency name and address; 

(B) address, including city, state, zip 
code, and telephone number; 
date of birth, sex, height, and weight; 



mi 
m 



discipline applied for; 

name, address, and telephone number 

of employer; 

(F) training agency attended; 

(G) name of training course completed; 
(H) dates of course attended; 

(2) two current 1 U inch x VA inch color 
photographs of the a pplicant with 
a pplicant's name and social security 
number printed on the back; 

(3) (7) confirmation of completion of an 
approved initial or refresher training 
course from the training agency; the 
confirmation shall be in the form of an 
original certificate of completion of the 
approved training course bearing the 
training agency's official seal, or an 
original letter from the training agency 
confirming completion of the course on 
training agency letterhead, or an 
original letter from the training agency 
listing names of persons who have 
successfully completed the training 
course, with the applicant's name 
included, on the training agency 
letterhead; 

£4} {8) when education is a requirement, a 
copy of the diploma or other written 
documentation; and 

(5) (9) when experience is a requirement, 
work history documenting asbestos 
related experience, including employer 
name, address and phone number; 
positions held; and dates when the 
positions were held-r ; and 

(6) when applicants for initial air monitor 
accreditation are working under a 
supervising air monitor pursuant to Part 



(c)(7)(B) of this Rule, the supervising 
air monitor shall submit an original, 
signed letter acknowledging 
responsibility for the applicant's air 
monitoring activities. The a pplicant 
shall ensure that a new letter is 
submitted to the Program any time the 
information in the letter currently on 
file is no longer accurate. 

(e) All accreditations , including accreditations 
issued prior to October 10, 19 88 , shall expire at 
the end of the 1 2th month following completion of 
required initial or refresher training. Work 
performed after the 12th month prior to 
reaccreditation shall constitute a violation of this 
Rule. To be reaccredited, an applicant shall have 
successfully completed the required refresher 
training course within 44 24 months after the 
initial or refresher training course. An applicant 
for reaccreditation shall also submit information 
specified in Subparagraphs (d)(l)-(d)ffl(6) of this 
Rule. If a person fails to obtain roacoroditation the 
required training within twe \2 calendar months 
after the expiration date of original accreditation, 
that person may be accredited only by meeting the 
requirements of Paragraphs (b), (c), and (d) of this 
Rule. 

(f) All accredited persons shall be assigned an 
accreditation number and issued a 
photo-identification card by the program Program . 

{g) Upon request, — a person accredited by 

another state s hall be accredited by the program if 
that state's accreditation program is at least as 
s tringent and as comprehen s ive as the accreditation 
program establi s hed by the s e rules. 

{b) {gj In accordance with G.S. 130A-23, the 
Program may revoke accreditation or 
reaccreditation for any violation of G.S. 130A, 
Article 19 or any of the these rules Rules of thi s 
Section , or upon finding that its issuance was 
based upon incorrect or inadequate information 
that materially affected the decision to issue 
accreditation or reaccreditation. The Program may 
also revoke accreditation or reaccreditation upon a 
finding that the accredited person has violated any 
s tandard requirement referenced in Rule .0605(e) 
of this Section. A person whose accreditation is 
revoked becau s e of fraudulent misrepresentation s 
or because of violations that create a s ignificant 
public health haza fd shall not be authorized to 
reapply for accreditation before six months for two 
years after the revocation and must shall repeat the 
initial training course and other requirements as 
shown set out in Paragraphs (b), (c), and (d) of 
this Rule. 



•;7 



NORTH CAROLINA REGISTER 



July 1, 1994 



462 



PROPOSED RULES 



Statutory Authority G.S. 130A-5(3); 130A-447; 
PL. 99-519. 

.0603 APPROVAL OF TRAINING COURSES 

(a) Pursuant to Rule .0602 of this Section , 
applicants for accreditation and reaccreditation are 
required to successfully complete training courses 
approved by the Program. Training courses: fe 
order to be approved by the Program, training 
programs shall meet the following requirements: 

(1) Training courses meeting Meeting the 
requirements of 40 CFR Part 763, 
Subpart E, Appendix C and approved 
for a specific training provider by the 
Environmental Protection Agency or by 
a state with an Environmental 
Protection Agency-approved 
accreditation program^ or by a state that 
has a written reciprocating agreement 
with the Program and meeting the 
requirements under Paragraph (g) of 
this Rule shall be deemed approved by 
the Program unless approval is 
suspended or revoked in accordance 
with Paragraph (g) £iQ of this Rule; er 

(2) Training — courses — covered Required 
under 40 CFR Part 763, Subpart E, 
Appendix C and having no prior 
Program approval as specified in 
Subparagraph (a)(1) of this Rule shall 
meet the requirements of 40 CFR Part 
763, Subpart E, Appendix C, I and III, 
Paragraph s (b) and (c) and Paragraphs 
(b)-(f) of this Rule; or 

(3) Training cour s e s &e-t covered 

Recommended under 40 CFR Part 
763, Subpart E, Appendix C shall meet 
the requirements of Paragraph — (e) 
Paragraphs (b)-(f) of this Ruler j or 

(4) Other than those covered in 
Subparagraphs (l)-(3) of this Paragraph 
required for North Carolina 
accreditation purposes shall meet the 
requirements of Paragraphs (c)-(f) of 
this Rule. 

A — list — of approved — training — course s — shall — be 
available from the Program. 

(b) Refresher training courses shall review and 
discuss changes in the Federal and State 
regulations, developments in the state-of-the-art 
procedures, and key aspects of the initial courses 
outlined under 40 CFR Part 763. Subpart E, 
Appendix C include a review of the following 
key aspects of the initial training course: 

i4j the refresher training courses for all 



disciplines shall include a review o f 
health effects of asbestos, reopiratory 
protection, — and — per s onal — protective 
equipment; 

£2) the — refre s her — training — course — fer 

inspector shall — include a review of 
record keeping, writing the inapootion 
report, — inspecting — fer — friable — aed 
non friable asbestos containing material, 
and assessing the condition of asbestos 
containing building material s ; 

(£) the — refresher — training — eewse — fef 

management planner shall include a 
review of record keeping, management 



1 a n 



content 



hazard 



assessment, determining an operations 
and maintenance plan, and selection of 
control options; 

(4) the — refresher — training — eewse — fer 

abatement project designer shall include 
a — review — ef- — de s igning — abatement 
solution s , budgeting and east 



considerations for work in 
building s and writing 



estimation, 

occupied 

abatement s pecification s ; 



(5) the — refresher — training — course — fef 

supervisor shall include a review of 
state of the art — work — practices, — air 
monitoring and supervisory techniques; 

ftfio 

{6} the — refresher — training — course — fer 

abatement — worker — shall — include — a 

review ef- state of the art work 

praotioc s , per s onal hygiene, and 

additional s afety hozards r 
(c) At the completion of the refresher training 
courses in all disciplines, the training provider 
shall administer a written closed book examination. 
a pproved by the Program. The requirements for 
the examination shall consist of a minimum of 50 
multiple choice questions. For successful 
completion of the course the applicant shall pass 
the exam with a minimum score of 70 percent. 

{e) {d} Training courses shall be evaluated for 
approval by the Program for course length, 
curriculum, training methods, instructors' 
qualifications, instructors' teaching effectiveness, 
technical accuracy of written materials and 
instruction, examination, and training certificate. 
Training course provider s — applying for cours e 
approval — shaH — submit — the — informati efi — and 
documentation s pecified on an application form 
provided by the Program. The evaluation will be 
conducted using 40 CFR Part 763, Subpart JL 
A ppendix C or NIOSH 582 curriculum, as 



463 



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PROPOSED RULES 



ap plicable, which are hereby incorporated by. 
reference, including any subsequent amendments 
and editions. These documents are available for 
inspection at the Department of Environment. 
Health, and Natural Resources. Asbestos Hazard 
Management Branch. 441 North Harrington Street. 
Raleigh. North Carolina 27603. Copies of 40 
CFR Part 763. Subpart E± A ppendix C may be 
obtained by. writing to the Superintendent of 
Documents. Government Printing Office. P.O. 
Box 371954, Pittsburgh. PA 15250-7954. at a cost 
of twenty-six dollars ($26.00). Copies of the 
NIOSH 582 curriculum may be obtained by 
writing the Department of Environment. Health, 
and Natural Resources. Asbestos Hazard 
Management Branch. P.O. Box 27687. Raleigh. 
NC 27611. at a cost of thirty-five dollars 
($35.00). 

(e) Training course providers shall submit the 
following for evaluation and approval by the 
Program: 

(1) a completed application on a form 
provided by the Program, along with 
su pporting documentation. The form 
and su pporting documentation shall 
include the following: 

(A) name, address, and telephone number 
of the training provider, and name 
and signature of the contact person: 

(B) course title, location and the language 
in which the course is to be taught: 

(C) a student manual and an instructor 
manual for each course and a content 
checklist that identifies and locates 
sections of the manual where required 
topics are covered: 
course agenda: 

a copy or description of all 
audio/visual materials used: 
a description of each hands-on 
training activity; 






a copy of a sample exam; 
a sample certificate with the following 
information: and 
(i) Name and social security number 

of student; 
(ii) Training course title specifying 
initial or refresher; 
Inclusive dates of course and 



m 



Mi 



applicable examination; 
Statement that the 



student 



completed the course and passed 
any examination required; 
Unique certificate number as required; 
For courses covered under 40 



CFR Part 763. Subpart JL 
A ppendix C^ certificate expiration 
date that is one year after the date 
the course was completed and the 
a pplicable examination passed; 
(vii) Printed name and signature of the 
training course administrator and 
printed name of the principal 
instructor: 
(viii) Name. address. and phone 

number of the training provider; 
(ix) Training course location; and 
(x) A statement that the person 
receiving the certificate has 
completed the requisite training 
for asbestos accreditation under 
Title II of the Toxic Substances 
Control Act; 
(D a list of training currently being 
provided. 
(2) A list of instructors and their 
qualifications in accordance with Rule 
.0608 of this Section. 

(f) Contingent a pproval shall be granted by the 
Program if the a pplication and su pporting 
documentation meet the criteria of Rule .0603(d) 
and (e) of this Section, except for technical 
accuracy of instruction and instructor 
effectiveness. Full a pproval shall be granted by 
the Program to a course with contingent a pproval 
after successful completion of an on-site audit of 
the course. The on-site audit shall include, but not 
be limited to. an evaluation of the following: 

(1) instructor effectiveness; 

(2) technical accuracy; 

(3) course administration; and 

(4) course content. 

(g) {&) Training course providers shall perform 
the following in order to maintain approval: 

(1) Issue a certificate of training meeting 
the requirements of Part (e)(1)(H) of 
this Rule to any student who completes 
the required training and passes the 
applicable examination. The certificate, 
to be s ubmitted to the Program for 
approval, s hall include; 
{A) — Name of s tudent; 
{B) — Training course title; 
{€-) — Inclu s ive — dates — ef- — course — and 

applicable examination; 
{D) — Statement that the s tudent completed 

the ooursc aed passed aey 

examination required; 
fE) — Certificate number a s required; 
fF) — For ooureee covered under 4 CFR 



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464 



PROPOSED RULES 



<&- 



14&-, — Subpart — E; — Appendix — Gj 
certificate expiration date that i s on e 
year after the date course completed 
and applicable examination pas s ed; 
Printed name and signature of training 



course administrator or printed name 
of principle instructor; and 
fH) — Name, address, and phone number of 
the training provider. 

(2) Submit to the Program written notice of 
intention to conduct a training course 
for North Carolina asbestos 
accreditation purposes if the course is 
to be taught in North Carolina or if 
requested by the Program . Notices for 
att training courses, except asbestos 
worker, shall be postmarked tea K) 
working days before the training course 
begins. Notices for asbestos worker 
training course courses shall be 
postmarked five working days before 
the training course begins. If the 
training course is cancelled, notify the 
Program at least 24 hours before the 
scheduled start date. Notification shall 
be made using a form provided by the 
Program and shall include the 
following: 

(A) Training provider name, address, 
phone number and contact person; 

(B) Training course title; 

(C) Inclusive dates of course and 
applicable exam; 

(D) Start and completion times; 

(E) Identify whether the course is public 
offering, contract training, or for the 
training provider's employees; and 

(F) Location and directions to course 
facilityr ; and 

(G) Language in which the course is 
taught. 

(3) Notify the Program, in writing, at least 
10 working days prior to the scheduled 
course start date, of any changes to 
course length, curriculum, training 
methods, training manual or materials, 
instructors, examination, training 
certificate, training course administrator 
or contact person. The changes must 
be a pproved by the Program in order 
for the course to be acceptable for 
accreditation purposes. 

(4) Submit to the Program information and 
documentation for any course approved 
under Subparagraph (a)(l)-(3) of this 



15} 



m 



IQ 

ffil 
IE) 



ID 

im 



im 



Rule if requested by the Program. 

Ensure that all instructors meet the 

requirements of Rule .0608 of this 

Section. 

Ensure that all training courses covered 

under this Rule meet the following 

requirements: 
Initial training courses shall have a 
minimum of four students, and all 
training courses a maximum of 40 
students enrolled and participating: 
A day of training shall include at least 
six and one-half hours of direct 
instruction. including classroom- 
hands-on training or field trips: 
Regular employment and instruction 
time shall not exceed 12 hours in a 24 
hour period; 

A training course shall be completed 
within a two-week period; 
All instructors and students shall be 
fluent in the language in which the 
course is being taught; 
An interpreter shall not be used; 
U pgrading worker accreditation to 
that of supervisor by completing only 
one day of initial training is not 
permitted. Separate initial training as 
a supervisor is required; 
A single instructor is allowed only for 
a worker course. Other initial 



disciplines shall have a minimum of 
two instructors; 
(T) Instructor ratio for hands-on shall be 
no more than K) students per 
instructor; 
(J) All course materials shall be in the 
language in which the course is being 
taught; 
(TO Each training course shall be 

discipline specific; and 
(L) Students shall be allowed to take an 
examination no more than twice for 
each course. After two failures, the 
student shall retake the full course 
before being allowed to retest. 
Verify, by photo identification, the 
identity of any student requesting 
training. 

Training course providers shall permit 
representatives to attend, evaluate and 
any training course, take the course 
examination and have access to records of training 
courses without charge or hindrance to the 
Program for the purpose of evaluating compliance 



ffi 



Ihife) 
Program 
monitor 



465 



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PROPOSED RULES 



with 40 CFR Part 763, Subpart E, Appendix C 
and these Rules. The Program shall perform 
periodic and unannounced on-site audits of training 
courses. 

£j] (f) In accordance with G.S. 130A-23, the 
Program may suspend or revoke approval for a 
training course for violation of this Rule and shall 
suspend or revoke approval upon suspension or 
revocation of approval by the Environmental 
Protection Agency or by any state with an 
Environmental Protection Agency-approved 
accreditation program. 

Statutory Authority G.S. 130A-5(3); 130A-447; 
P.L. 99-519. 

,0604 ASBESTOS MANAGEMENT PLANS 

(a) All Local Education Agencies as defined in 
40 CFR Part 763, Subpart E shall submit Asbestos 



Management Plans for school buildings to the 
Program on forms provided by the Program. 
Asbestos Management Plans shall meet the 
requirements contained in 40 CFR Part 763., 
Subpart E. 

(b) In addition to the requirements in Paragraph 
(a) of this Rule, the management plan shall 
identify, locate, classify, quantify, and assess 
asbestos containing building materials, comply 
with the following; 

Q) AH — Asbestos — Containing — Building 

Material s s hall be identified, located, 
classified and as s essed; and 

(3) The — Local — Education — Agency — s hall 

notify the Program of asbestos removal 
projects within ten working day s after 
the removal area has been cleared for 
occupancy. 

(c) All Local Education Agencies shall submit to 
he Program^ within 120 days of the actual on-site 
einspection. the Asbestos Hazard Emergency 



Response Act reinspection reports as required 
inder 40 CFR Part 763, Subpart E. These reports 
hall be submitted on forms provided by the 
> rogram. 

(d) All inspectors and management planners 
leveloping management plans and reinspection 



eports under the Asbestos Hazard Emergency 



Response Act shall comply with all requirements 



)f 40 CFR Part 763. Subpart E and these Rules. 

'tatutory Authority G.S. 130A-5(3); 130A-445; 
>.L. 99-519. 

0605 ASBESTOS CONTAINING 

MATERIALS REMOVAL PERMITS 



(a) No person shall remove more than 35 cubic 
feet £1 cubic meter) . 160 square feet £15 square 
meters) or 260 linear feet (80 linear meters) of 
regulated asbestos containing material friable 
asbestos containing material, or nonfriablc asbestos 
containing material that may become friable during 
handling , without a permit issued by the Program. 
This permitting requirement is a pplicable to: 

(1) individual removals that exceed the 
threshold amounts addressed in this 
Paragraph; 

(2) nonscheduled asbestos removals 
conducted at an installation that exceed 
the threshold amounts addressed in this 
Paragraph in a calendar year of January 
1 through December 31. 

Other asbestos abatement activities are exempt 
from the permit requirements of G.S. 130A-449. 

(b) All a pplications shall be made on a form 
provided or a pproved by the Program. The 
application submittal shall include at least all of the 
information specified under the notification 
requirements of 40 CFR Part 61.145(b). Subpart 
M. Applications for asbestos containing material 
removal permits shall adhere to the following 
schedule, be submitted to and received by the 
Program at least ton working days prior to the 
s cheduled removal date. — However, for asbesto s 
removal determined by the Program to require 
immediate action, the ton day notice s hall not be 
required. 

(1) A pplications for individual asbestos 
removals shall be postmarked or 
received by the Program at least 10 
working days prior to the scheduled 
removal start date. For emergency 
renovation operations involving 
asbestos removal, the 10 working days 
notice shall be waived. An a pplication 
for a permit for the emergency 
renovation operation shall be 
postmarked or received by the Program 
as early as possible before, but not later 
than, the following working day. 
Permit a pplications for emergency 
renovation operations shall be 
accompanied by a letter from the owner 
or his representative explaining the 
cause of the emergency; 
Applications for nonscheduled asbestos 
removals shall be postmarked or 
received by the Program at least 10 
working days before the start of the 
calendar year and shall expire on or 
before the last day of the same calendar 



121 



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466 



PROPOSED RULES 



year. Reports of the amount of 
regulated asbestos containing material 
removed will be made at least quarterly 
to the Program. 
The application shall be made on a form provid e d 
by the Program. 

(c) Application for revision to an issued asbestos 
removal permit shall be made by. the a pplicant in 
writing on a form provided by the Program and 
shall be received by the Program in accordance 
with the following: 

(1) Revision to a start date for a project 
that will begin after the start date stated 
in the approved permit shall be received 
on or before the previously stated start 
date or previously revised start date; 

(2) Revision to a start date for a project 
that will begin before the start date 
stated in the approved permit shall be 
received at least 10 working days 
before the new start date: 

(3) Revision to a completion date that will 
be extended beyond the completion date 
stated in the approved permit shall be 
received by the original or previously 
revised completion date: 

(4) Revision to a completion date that will 
be earlier than the completion date 
stated in the a pproved permit shall be 
received by the new completion date: 
and 

(5) Revisions to permits other than start or 
completion dates shall be received on or 
before the third working day after the 
completion date of the removal. 

{e) Revisions — fef — issued — asbesto s — removal 

permits shall be as follow s : 

{4-) Revisions for renovations 

{A) — that will begin after the s tart date 
contained — m — the — approved — permit, 
shall be submitted to the Program by 
the original s tart date; 
{&) — that will begin on a date earlier than 
the — start — date — contained — m — the 
approved permit, shall be submitted to 
the Program by written notice at least 
tee — working — days — prior — te — the 
beginning of asbesto s work. 

(3) Revi s ion s to original completion date 

s hall be submitted to the Program at 
least one working day prior to the 
revi s ed — completion — date — by — written 



m- 



Hi 

notice 

Revisions 



other — thafi stert aad 



the Program within three working da y 
by written notice. — In no event, ohall 



removal covered by those Rulco atart o 
a date other than the date contained } 



the revised porra ifc- 

(d) Copies of the following shall be maintaine 

on site during removal activities and b 

immediately available for review by the Program 

(1) copy of the removal permit issued b 

the Program and all revisions : 

applicable asbestos abatement desi 

specifications and contract documen t* 



(2) 



(3) 



and 

photo identification and aocrcditntio 
inform ati eg cards issued by th 
Program for all personnel performin 
removal activities, 
(e) All permitted removal activities shall b 
conducted in accordance with the Toxic Substance 



Control Act, 15 USC 2601 ; 29 CFR Port 1910 an 



W26t 40 CFR Parts 61 and 763, Subpart E. wher 
a pplicable. Notwithstanding permit suspension o 
revocation for violation of these Rules 
a pplicable federal regulations, a removal perm 



shall also be subject to suspension or revocation 
the removal activities are in violation 
Department of Labor Rules, B NCAC 1C .010 



et seq.. Department of Transportation Rules. 19; 
NCAC 1 .0101 et seq., or Solid Wast 



Management Rules, 15A NCAC 13 .0001 et se q 
as determined by the agencies administering thos 
Rules, respectively. Environmental — Protectio 



Agency's Guidance — fe-r — oontrollin 

Asbestos Containing — Material s — m — Building i 



560/5 8 5 02 4 — except — paragraphs — 6 . 4 .1 — VistH 



In s pection and 6. 4 .2 Air Tcoting; Environment! 



Protection — Agency's — A — Guide — te — Respirator 
Protection for the Asbestos Abatement Induatr 



560 OPTS 86 001 except Part II C. Reapirato 



Selection; — Environmental — Protection — Agency 



Measuring — Airborne — Asbestos — Following — A 
Abatement — Action, — 600/ 4 8 5 4 9; — America 



National Standards In s titute's Respirator 



Protection, Respirator Use, Physical Qualification 
for Per s onnel, Z 88 .6 19 84 ; American Nationi 



Standards — Institute's — Practices — fef — Rcspimtoi 
Protection, — Z 88 .2 19 8 0; — American — Nationi 



Standards Institute's Fundamentals Governing th 



Design and Operation of Local Exhau s t Systcm i 
Z9.2 1979; 4 9 CFR Part 173; G.S. Chaptcro 9 



and 130 A, which are hereby adopted by refcreno 
in accordance with G.S. 150B 1 4 (o); 

(f) All permitted removals shall be conducte 
under the direct supervision of an accredite 



completion date s shall be submitted to supervisor. The supervisor shall be on-site at a 



467 



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NORTH CAROLINA REGISTER 



July 1, 199' 



PROPOSED RULES 



times when removal activities are being performed. 

(g) An asbestos abatement design shall be 
prepared by. an accredited abatement designer for 
each individually permitted removal conducted in 
public areas. 

0) {h) In accordance with G.S. 130A-23, the 
Program may suspend or revoke the permit for any 
violation of G.S. 130A, Article 19 or any of the 
rules of this Section. The Program may also 
revoke the permit upon a finding that its issuance 
was based upon incorrect or inadequate 
information that materially affected the decision to 
issue the permit. 

Statutory Authority G.S. 130A-5(3); 130A-449; 
P.L. 99-519. 

.0606 FEES 

(a) The fee required by G.S. 130A-450 shall be 
submitted with an application for the asbestos 
containing material removal permit. The amount 
of the foe is one percent of the contract price or 
twenty cents ($0.20) per s quare or linear foot, 
whichever is greater. — Fees for the removal of 
s urfacing materials, ceiling tiles and floor tiles, 
when permitting, — s hall bo one percent of the 
contract price or fifteen cents ($0.15) per s quare 

foot, whichever is greater. Fees for asbestos 

removal — fef — demolition — purpo s e s — shaH — be — a 
maximum of throe hundred dollars ($300.00). The 
fees shall be as follows: 

(1) Fees for the removal of floor tiles, 
when permitted, shall be one percent of 
the contract price or ten cents ($0.10) 
per square foot, whichever is greater; 

(2) Fees for the removal of ceiling tiles 
shall be one percent of the contract 
price or ten cents ($0.10) per square 
foot: whichever is greater; 

(3) Fees for the removal of surfacing 
material, thermal system insulation, 
cementitious asbestos containing 
materials and other asbestos containing 
materials shall be one percent of the 
contract price or twenty cents ($0.20) 
per square or linear foot; whichever is 
greater: 

(4) Fees for demolition shall be a 
maximum of three hundred dollars 
($300.00). Demolition, for the 
purposes of this Rule only, means the 
act of razing a building or structure, or 
portion thereof, to the ground. 
Removal of regulated asbestos 
containing material from any 



undemolished portion of a building or 
structure shall be permitted as an 
individual asbestos removal; and 
(5) An owner of any single family dwelling 
in which the owner resides or will 
reside after the asbestos removal is 
complete is exempt from permit fees. 
A permit shall not be issued until the required fee 
is paid. However, — when — the — program — het» 
determined that immediate action i s neces s ary, the 
fee shall not bo required to be s ubmitted with the 
application, but s hall be submitted to and received 
by the Program within five working day s of 
i s suance of the permit. 

(b) The fee required by G.S. 130A-448 shall be 
submitted with an application for accreditation or 
reaccreditation. The amount of the fee shall be 
one hundred dollars ($100.00) for each category, 
except that the fee for persons applying for 
accreditation or reaccreditation as workers shall be 
twenty-five dollars ($25.00). However, if a 
person applies for accreditation or reaccreditation 
in more than one category per calendar year, the 
amount of the fee shall be one hundred dollars 
($100.00) for accreditation or reaccreditation in the 
first category and seventy-five ($75.00) for 
accreditation or reaccreditation in each remaining 
category^ except for workers . A person shall not 
be accredited or reaccredited until the required fee 
is paid. 



Statutory Authority G.S. 
130A-450; P.L. 99-519. 



.0607 



130A-5(3); 130A-448; 



ASBESTOS EXPOSURE STANDARD 
FOR PUBLIC AREAS 

(a) The maximum allowable ambient asbestos 
level in the air for public areas shall be^ 

(1) 0.01 fibers per cubic centimeter as 
analyzed by phase contrast microscopy, 
or 

(2) arithmetic mean of less than or equal to 
70 structures per millimeter square as 
analyzed by transmission electron 
microscopy , or 

(3) a Z-Test result that is less than or equal 
to 1.65 as analyzed by transmission 
electron microscopy. 

(b) Ambient air sampling shall be conducted in 
public areas outside the work area where permitted 
asbestos removal activities arc being performed. 
For permitted individual asbestos removals, 
ambient air sampling shall be conducted in public 
areas adjacent or connected to the asbestos 
removal area. The frequency and location of the 



9:7 



NORTH CAROLINA REGISTER 



July 1, 1994 



468 



PROPOSED RULES 



sampling shall monitor potential public asbestos 
exposure and must be specified in the abatement 
project monitoring plan. Initial sampling shall be 
conducted on the day that regelated asbestos 
containing material removal begins. The sampling 
shall continue on a daily basis unless, or until, the 
monitoring plan specifies differently. 

(c) Clearance air sampling shall be conducted in 
accordance with Paragraphs (d) and (e) of this 
Rule for all permitted asbestos removal projects 
conducted in public areas. Clearance levels for all 
public — areas — sbaH — meet — the — requirements — of 
Paragraph (a) of this Rule, air samples shall be 
analyzed by: 

(1) transmission electron microscopy and 
comply with the levels specified under 
Subparagraph (a)(2) or (a)(3) of this 
Rule for individually permitted 
removals that are more than 35 cubic 
feet, 160 square feet or 260 linear feet 
of regulated asbestos containing 
material; or 

(2) transmission electron microscopy or 
phase contrast microscopy and comply 
with the levels specified in Paragraph 
(a) for all other nonscheduled asbestos 
removals. 

(d) Phase contrast microscopy and ef 
transmission electron microscopy sampling and 
analysis methods shall be conducted in accordance 
with 40 CFR Part 763, Subpart E. 

(e) Sample analysis for phase contrast 
microscopy or transmission electron microscopy 
samples shall be performed by a laboratory 
meeting the requirements of PL. 99-519 and 40 
CFR 763 and accompanying appendices. 
Laboratories performing phase contrast microscopy 
analysis pursuant to this Rule shall have a rating of 
proficient by the American Industrial Hygiene 
Association's Proficiency Analytical Testing 
Program. Persons performing phase contrast 
microscopy analysis shall have successfully 
completed a NIOSH 582 or a NIOSH 582 
equivalent training course. Persons performing 
phase contrast microscopy analysis at the asbestos 
removal location shall be proficient in the 
American Industrial Hygiene Association's 
Asbestos Analysts Registry Program. 

(f) A final visual inspection shall be conducted 
by an accredited air monitor for all permitted 
asbestos removal projects conducted in public 
areas. This visual inspection shall be conducted 
prior to clearance air sampling. The final visual 
inspection shall assure that all asbestos containing 
residue. dust. and debris and asbestos 



contaminated equipment has been removed. 

(g) Any person performing ambient or clearance 
air sampling or visual inspection during an 
asbestos removal as specified under Paragraphs 
(b), (c), and £Q of this Rule shall be retained by 
the building owner. The accredited air monitor 
shall not be employed by the contractor hired to 
conduct the asbestos removal except that: 

(1) this restriction in no way applies to 
personal samples taken to evaluate 
worker exposure as required by 
Occupational Safety and Health 
Administration: and 
£2] this restriction shall not apply when the 
contractor and air monitor have 
disclosed their association to the 
building owner and the building owner 
a pproves this association in writing, 
(h) For air sampling and visual inspections 
conducted under Paragraphs (b), (c). and (f) of this 
Rule, the supervising air monitor shall: 

(1) Prepare, prior to the removal start date, 
an abatement project monitoring plan 
which takes into consideration at least 
the abatement project scope of work, 
building use, occupant locations and 
their potential for exposure to airborne 
asbestos fibers, type of asbestos 
containing material, and the asbestos 
abatement design, including work 
practices and engineering controls. The 
plan shall include air sampling 
procedures, air sample locations and air 
sampling frequency. This sampling 
plan may be amended by the 
supervising air monitor as needed: 

(2) Ensure that ambient air sampling results 
shall be available on-site within 48 
hours of completion of sample 
collection: 

(3) Personally inspect any individually 
permitted asbestos removal project: 

(A) that exceeds 10 working days in 
length, but does not exceed 30 
working days, at least once: or 

(B) that exceeds 30 working days in 
length, at least once in the first 30 
working days and at least once every 
30 working days thereafter: 

(4) Prepare a written, signed and dated 
report documenting all site visits made 
to the removal, final visual inspection, 
and all ambient and clearance air 
sampling conducted. This report shall 
be supplied by the supervising air 



469 



9:7 



NORTH CAROLINA REGISTER 



July 1, 1994 



PROPOSED RULES 



monitor to the building owner. The 
building owner shall su pp ly a copy of 
the report to the Program upon request. 

Statutory Authority G.S. 130A-5(3); 130A-446; 
P.L. 99-519. 

.0608 TRAINING COURSE INSTRUCTOR 
QUALIFICATIONS 

(a) Any person seeking a pproval as an instructor 
for courses covered under 40 CFR Part 763. 
Subpart E* A ppendix C and Ruje .0603(a)(3) of 
this Section shall meet the a pplicable requirements 
listed in this Rule. 

(b) All training course providers shall submit, or 
cause to be submitted, to the Program the 
following: 

(1) a completed application on a form 
provided by the Program with the 
following information: 

(A) name, address, and telephone number 
of the applicant; 

(B) name, address and telephone number 
of the training provider that is 
employing the a pplicant; 

(2) when training course completion is a 
requirement, confirmation of 
completion of an a pproved training 
course; the confirmation shall be in the 
form of a copy of a certificate of 
completion of the approved training 
course or the following information: the 
course title, dates of instruction, names 
of instructors, name, address and 
telephone number of the training 
provider; 

(3) when education is a requirement, a 
copy of the diploma or other written 
documentation; 

(4) when work experience is a requirement, 
documentation of relevant work history, 
including employer name, address and 
telephone number, positions held, dates 
when positions were held, and copies of 
any licenses, registrations, certifications 
or accreditations that are relevant to the 
subject matter to be taught; and 

(5) when experience as an instructor is a 
requirement, documentation of relevant 
instructional experience including name 
of training courses taught, topics taught 
for each course, inclusive dates of each 
training course, and name, address and 
telephone number of each training 
organization for which experience is 



claimed. 

(c) Work practice topics for each shall include: 

(1) for the worker course: state-of-the-art 
work practices; 

(2) for the supervisor course: 
state-of-the-art work practices, and 
techniques for asbestos abatement 
activities; 

(3) for the inspector course: pre-inspection 
planning and review of previous 
inspection records, inspecting for 
friable and nonfriable asbestos 
containing materials and assessing the 
condition of friable asbestos containing 
materials, bulk sampling/documentation 
of asbestos in schools, recordkeeping 
and writing inspection reports; 

(4) for the management planner course: 
evaluation/interpretation of survey 
results, hazard assessment, developing 
an operations and maintenance plan, 
recordkeeping for the management 
planner, and assembling and submitting 
the management plan; 

(5) for the abatement designer course: 
safety system design specifications, 
designing abatement solutions, 
budgeting/cost estimation. writing 
abatement specifications, preparing 
abatement drawings and occupied 
buildings; and 

(6) for the project monitor course: 
asbestos abatement contracts, 
specifications and drawings, response 
actions and abatement practices, air 
monitoring strategies, conducting visual 
inspections, and recordkeeping and 
report writing. 

(d) Instructors for work practice topics, 
hands-on exercises, workshops, or field trips 
where required for courses covered under 40 CFR 
Part 763. Subpart E± A ppendix C shall meet the 
following requirements as applicable: 

(1) For the worker initial and refresher and 
the supervisor initial and refresher 
courses: 

(A) the a pplicant shall have successfully 
completed the initial and subsequent 
refresher training course requirements 
for supervisor; and 

(B) the applicant shall meet at least one of 
the following education and asbestos 
work experience combinations: 

(i) If the a pplicant does not possess 
either a high school diploma or 



»:7 



NORTH CAROLINA REGISTER 



July 1, 1994 



470 



PROPOSED RULES 



equivalent, the applicant shall: 



(I) have at 



least 1440 
experience in a 



hours 
worker or 



121 



supervisory capacity' in a 

contained work area; and 

(II) have at least 360 hours as an 

instructor in an Environmental 

Protection Agency-approved or 

Environmental Protection 

Agency state a pproved worker 

course. 

(ii) If the a pplicant possesses either a 

high school diploma or 

equivalent, the applicant shall: 

(D have at least 960 hours 

experience in a worker. 

supervisory. or consulting 

capacity in a contained work 

area: or 

(II) have at least 240 hours as an 

instructor in an Environmental 

Protection Agency-approved or 

Environmental Protection 

Agency state approved 

asbestos worker or supervisor 

course or other occupational 

safety and health or 

environmental courses required 

to meet federal and state 

regulations, 

(iii) If the applicant possesses at least 

an associate degree from a 

regionally accredited college or 

university, the a pplicant shall: 

(T) have at least 480 hours 

experience in a worker. 

supervisory. or consulting 

capacity in a contained area: 

or 

(II) have at least 120 hours as an 

instructor in an Environmental 

Protection Agency-approved or 

Environmental Protection 

Agency state approved 

asbestos worker or supervisor 

course or other occupational 

safety and health or 

environmental courses required 

to meet federal and state 

regulations. 

For the inspector initial and refresher 

courses: 

(A) the applicant shall have successfully 

completed the initial and subsequent 

refresher training course requirements 



£B) 



for inspector: and 

the applicant shall meet at least one of 

the following education and asbestos 



work experience combinations: 

£i] If the a pplicant possesses either a 

high school diploma or 

equivalent, the a pplicant shall: 

(D have documented experience- 



including asbestos inspections 
in at least 1.000.000 square 



an 



feet of building space in the 
past three years: or 
have at least 60 hours as an 
instructor in an Environmental 



Protection Agency-approved or 



Protection 



approved 



or other 



mi 



m 



Environmental 

Agency state 

inspector course 

occupational safety and health 

or environmental courses 

required to meet federal and 

state regulations. 
If the a pplicant possesses at least 
an associate degree from 
regionally accredited college or 
university, the applicant shall: 

have documented experience. 



including asbestos inspections 



in at least 500.000 square feet 



ffll 



of building space in the past 
three years; or 
have at least 40 hours as an 
instructor in an Environmental 



Protection Agency-approved or 



Environmental Protection 



approved 



other 



Agency state 
inspector course or 
occupational safety and health 
and environmental courses 



01 



required to meet federal and 

state regulations. 
For the management planner initial and 
refresher courses: 
(A) the a pplicant shall have successfully 



completed the initial and subsequent 



refresher training course requirements 



ffil 



for management planner: and 

the applicant shall meet at least one of 

the following education and asbestos 



ill 



work experience combinations: 

If the applicant possesses either a 
high school diploma or 
equivalent, the a pplicant shall: 
(T) have documented management 



planning experience showing at 



471 



9:7 



NORTH CAROLINA REGISTER 



July 1, 1994 



PROPOSED RULES 



least 25 management plans or 
reinspection reports written in 
the past three years, or 
documented experience as the 
management consultant for at 
least 25 asbestos projects in 
the past three years, or a 
combination of management 
plans and projects managed: or 

(II) have at least 48 hours as an 

instructor in an Environmental 

Protection Agency-approved or 

Environmental Protection 

Agency state approved 

management planner course or 

other occupational safety and 

health or environmental 

courses required to meet 

federal and state regulations. 

(ii) If the a pplicant possesses at least 

an associate degree from a 

regionally accredited college or 

university, the a pplicant shall: 

(D have documented management 
planning experience showing at 
least 12 management plans or 
reinspection reports written in 
the past three years, or 
documented experience as the 
management consultant for at 
least 12 asbestos projects in 
the past three years, or a 
combination of management 
plans and projects managed: or 

(II) have at least 32 hours as an 
instructor in an Environmental 
Protection Agency-approved or 
Environmental Protection 
Agency state a pproved 
management planner course or 
other occupational safety and 
health or environmental 
courses required to meet 
federal and state regulations. 
(4) For the project designer initial and 
refresher courses: 

(A) the applicant shall have successfully 
completed the initial and subsequent 
refresher training course requirements 
for abatement project designer: and 

(B) the applicant shall meet at least one of 
the following education and asbestos 
work experience combinations: 

Ii) If the applicant possesses either a 
high school diploma or 



equivalent, the a pplicant shall: 



(I) have documented 



asbestos 
design 



abatement project 

experience including the design 

of at least 12 asbestos projects 

in the past three years: or 

(II) have at least 30 hours as an 

instructor in an Environmental 

Protection Agency-approved or 

Environmental Protection 

Agency state approved 

abatement project designer 

course or other occupational 

safety and health and 

environmental courses required 

to meet federal and state 

regulations. 

(ii) If the a pplicant possesses at least 

an associate degree from a 

regionally accredited college or 

university, the a pplicant shall: 

(I) have documented asbestos 



abatement 



project design 
including the 



experience, 
design of at least six asbestos 
projects in the past three years: 
or 
(II) have at least 20 hours as an 
instructor in an Environmental 
Protection Agency-approved or 
Environmental Protection 
Agency state a pproved abate- 
ment project designer course 
or other occupational safety 
and health and environmental 
courses required to meet feder- 
al and state regulations. 
(5) For the project monitor initial and 
refresher courses: 

(A) the a pplicant shall meet the qualifica- 
tions for project designer instructor 
under Subparagraph (d)(4) of this 
Rule or the qualifications for supervi- 
sor instructor under Subparagraph 
(d)(1) of this Rule to teach the work 
practice topics of asbestos abatement 
contracts, specifications and drawings 
or response action and abatement 
practices: 

(B) the applicant for work practice topics 
of air monitoring strategies, conduct- 
ing visual inspections, and record- 
keeping and report writing shall: 

£i) possess either a high school diplo- 
ma or equivalent: 



NORTH CAROLINA REGISTER 



July 1, 1994 



472 



PROPOSED RULES 



(ii) successfully complete a NIOSH 
582 course or Program approved 
equivalent. or a Program 
a pproved project monitor course; 
and 
(iii) have documented asbestos air 
monitoring experience on at least 
six asbestos removals. 
(6) All instructors a pproved under 
Paragraph (d) of this Rule shall take a 
refresher training in at least one 
discipline from a training provider other 
than their employer every other year. 

(e) Instructors who will teach segments of 
training courses covered under 40 CFR Part 763. 
Subpart E± A ppendix C other than work practice 
topics, hands-on exercises, workshops, or field 
trips shall meet the following requirements: 

(1) be actively working in the field of 
expertise in which training is 
conducted; and 

(2) have a minimum of a high school 
diploma or equivalent. 

(f) Instructors for a Program a pproved NIOSH 
582 or Program approved equivalent shall meet the 
following requirements: 

(1) have a high school diploma or 



£2) 



(3) 



equivalent; 
attend the 
Occupational 



National 
Safety 



Institute for 
and Health's 



NIOSH 582 training course; and 
for teaching the NIOSH 7400 Method, 
have at least three months work 
experience as a microscopist 
performing analysis using the NIOSH 
7400 Method. 



Statutory Authority G.S. 130A-447; P.L. 99-519. 
****************** 

ISotice is hereby given in accordance with G.S. 
150B-21.2 that EHNR - Commission for Health 
Services intends to amend rules cited as 15A 
NCAC20D .0234, .0243. 

1 he proposed effective date of this action is 
October 1, 1994. 

1 he public hearing will be conducted at 1:30 
p.m. on July 21, 1994 at the Archdale Building, 
Ground Floor Hearing Room, 512 N. Salisbury 
Street, Raleigh, N. C. 



ixeason for Proposed Action: To improve the 
certification criteria for laboratories analyzing 
public water supplies for compliance with the Safe 
Drinking Water Act. 

Lsomment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to Grady L. 
Balentine, Department of Justice, PO Box 629, 
Raleigh, NC 27602-0629. All written comments 
must be received by August 1, 1994. Persons who 
wish to speak at the hearing should contact Mr. 
Balentine at (919) 733-4618. Persons who call in 
advance of the hearing will be given priority on 
the speaker 's list. Oral presentation lengths may 
be limited depending on the number of people that 
wish to speak at the public hearing. Only persons 
who have made comments at a public hearing or 
who have submitted written comments will be 
allowed to speak at the Commission meeting. 
Comments made at the Commission meeting must 
either clarify previous comments or proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL 
INTERESTED AND POTENTIALLY AFFECTED 
PERSONS, GROUPS, BUSINESSES, 
ASSOCIATIONS, INSTITUTIONS OR AGENCIES 
MAKE THEIR VIEWS AND OPINIONS KNOWN 
TO THE COMMISSION FOR HEALTH SERVICES 
THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS, WHETHER THEY 
SUPPORT OR OPPOSE ANY OR ALL 
PROVISIONS OF THE PROPOSED RULES. THE 
COMMISSION MAY MAKE CHANGES TO THE 
RULES AT THE COMMISSION MEETING IF THE 
CHANGES COMPLY WITH G.S. 150B-21.2(f). 

CHAPTER 20 - LABORATORY SERVICES 

SUBCHAPTER 20D - CERTIFICATION AND 
IMPROVEMENT 

SECTION .0200 - LABORATORY 
CERTIFICATION 

.0234 CRITERIA AND PROCEDURES: 
DECERTIFICATION/DENIAL/ 
DOWNGRADING 

(a) The Department of Environment, Health, 
and Natural Resources or its delegate may 



473 



9:7 



NORTH CAROLINA REGISTER 



July I, 1994 



PROPOSED RULES 



downgrade or deny laboratory certification if the 
laboratory: 

(1) Failed to train or supervise employees 
in laboratory methodologies required by 
15A NCAC 18C .1500; 

(2) Failed to report analytical results of 
performance evaluation samples or 
compliance samples or maintain records 
as required by this Section and the 
Rules Governing Public Water Supplies 
in 15A NCAC 18C .1500; 

(3) Failed to maintain facilities and 
equipment in accordance with the 
minimum requirements of this Section; 

(4) Failed to notify the certification 
evaluator of major changes such as 
personnel, equipment, or laboratory 
location; of 

(5) Violated or aided and abetted in the 
violation of any provisions of the rules 
of this Section ^ or 

(6) Failed to correctly analyze on-site 
evaluation performance samples during 
the initial on-site evaluation. 

(b) A downgraded laboratory with provisional 
certification may continue to perform analyses. 
The provisional status shall continue for at least 
six months. At the end of six months the 
laboratory certification shall be reinstated if the 
laboratory has made corrections and is in 
compliance with the minimum requirements for 
certification. If no corrections have been made the 
aboratory certification may be revoked. 

(c) The Department of Environment, Health, 
ind Natural Resources or its delegate may 
decertify or deny laboratory certification when a 
aboratory or its employees have done any of the 
Following: 

(1) Knowingly made false statements on 
any documents associated with 
certification; 

(2) Falsified results of analyses; 

(3) Submitted performance evaluation 
samples used for certification 
determination to another laboratory for 
analysis; 

(4) Failed to employ approved laboratory 
methodology in the performance of the 
analyses required by 15A NCAC 18C 
.1500; 

(5) Failed to correctly analyze performance 
evaluation samples including United 
States EPA water study, double blind, 
blind, and on-site samples or report the 
results within the specified time in 



accordance with the requirements of 
15A NCAC 20D .0243 and .0251; 

(6) Failed to report analytical results of 
performance evaluation samples or 
compliance samples or maintain records 
as required by this Section and the 
Rules Governing Public Water Supplies 
in 15 A NCAC 18C; 

(7) Failed to satisfy the certification 
evaluator that the laboratory has 
corrected deviations identified during 
the on-site visit within 30 days; or 

(8) Violated or aided and abetted in the 
violation of any provisions of the rules 
of this Section. 

(d) The Department of Environment, Health, 
and Natural Resources or its delegate shall notify 
a laboratory of its intent to decertify, downgrade 
to provisional status or deny certification. The 
notice shall be in writing and include reasons for 
the decision and shall be delivered by certified 
mail. 

(e) This Rule shall not preclude informal 
conferences concerning a decision to decertify, 
downgrade to provisional status or deny 
certification. 

If} If a laboratory is denied initial certification 
for failure to satisfy this Rule, another evaluation 
shall be scheduled no less than 60 days after the 
initial on-site evaluation. If the laboratory is 
denied certification during the second on-site 
evaluation, the laboratory shall satisfy the initial 
certification criteria as stated in Rule .0232 of this 
Section before another evaluation is scheduled. 

(g) The Department of Environment, Health , 
and Natural Resources or its delegate may 
decertify or deny laboratory certification if the 
laboratory has been decertified by another 
certifying agency for committing any of the items 
contained in Subparagraphs (cKl)-(3) of this Rule. 

Statutory Authority G.S. 130A-315. 

.0243 CHEMISTRY QUALITY ASSURANCE 

(a) The following general requirements for 
chemistry quality assurance (QA) shall be met: 

(1) All quality control information shall be 
available for inspection by the 
certification officer; 

(2) A manual of analytical methods and the 
laboratory's QA plan shall be available 
to the analysts; 

(3) Class S weights or higher quality 
weights shall be available to make 
periodic checks on the accuracy of the 



»:7 



NORTH CAROLINA REGISTER 



July 1, 1994 



474 



PROPOSED RULES 



balances. Checks shall be within range 
of the manufacturer's guidelines. A 
record of these checks shall be available 
for inspection. The specific checks and 
their frequency are to be as prescribed 
in the laboratory's QA plan or the 
laboratory's operations manual. These 
checks shall be performed at least once 
a month; 
(4) Color standards or their equivalent, 
such as built-in internal standards, shall 
be available to verify wavelength 
settings on spectrophotometers. These 
checks shall be within the 
manufacturer's tolerance limits. A 
record of the checks shall be available 
for inspection. The specific checks and 
their frequency shall be as prescribed in 
the laboratory's QA plan or the 
laboratory's operations manual. These 
checks shall be performed at least every 
six months, 
(b) The laboratory shall analyze performance 
samples as follows: 

(1) United States Environmental Protection 
Agency performance evaluation samples 
shall be analyzed semi-annually. 
Results shall be within control limits 
established by EPA for each analyte for 
which the laboratory is or wishes to be 
certified. 

(2) Double blind and blind samples shall be 
analyzed when submitted to a certified 
laboratory and results shall be within 
established control limits; these data 
shall be of equal weight to the EPA 
performance evaluation sample data and 
on site quality control sample data in 
determining the laboratory's 
certification status. 

(3) On-site quality control samples shall be 
analyzed when presented to the 
laboratory by the certification evaluator 
and results shall be within established 
control limits. These data shall be of 
equal weight to the EPA performance 
evaluation sample data and the double 
blind sample data in determining the 
laboratory's certification status. 

(4) A performance level of 75 percent s hall 
be — maintained — fef — eaefe — analyte for 
which a laboratory is or wishes to be 
certified. — This 75 percent average shall 
be calculated from the ten most recent 
performance sample data points from 



the ER\ water studie s , double blin ds 
blind, and on s ite s ample s . In the event 
the laboratory doe s not have ten data 
points, the 75 pe r cent average will be 
calculated on the exi s ting data points, 
with a minimum of four data points 
needed before a determination is made. - 
A laboratory shall have correctly 
analyzed two out of the last three 
performance samples for each analyte 
for which it is certified. In the event 
that a laboratory is decertified for 
failing to correctly analyze two out of 
the last three performance samples, the 
laboratory shall correctly analyze two 
consecutive performance samples to 
have their certification reinstated. The 
performance samples shall be analyzed 
no less than 30 days apart. A 
laboratory with less than three 
performance samples shall have 
successfully analyzed a minimum of 
two performance samples before their 
certification status may be determined. 

(5) Unacceptable performance on any of 
the samples in Paragraph (b) of this 
Rule shall be corrected and explained in 
writing within 30 days and submitted to 
the certification evaluator. 
(c) The minimum daily quality control (QC) for 
chemistry shall be as follows: 

(1) Inorganic Contaminants: 

(A) At the beginning of each day that 
samples are to be analyzed, a standard 
curve composed of at least a reagent 
blank and three standards covering the 
sample concentration range shall be 
prepared. 

(B) The laboratory shall analyze a QC 
sample (EPA QC sample or 
equivalent) at the beginning of the 
sample run, at the end of the sample 
run, and every 20 samples, with 
recoveries not to exceed +_ 10 percent 
of the true concentration. The source 
of this QC sample shall be different 
from the source used for the 
calibration standards in Part (c)(1)(A) 
of this Rule. 

(C) The laboratory shall run an additional 
standard or QC check at the 
laboratory's lowest detectable limit 
for the particular analyte. The 
laboratory shall not report a value 
lower than the lowest standard or QC 



475 



9:7 



NORTH CAROLINA REGISTER 



July 1, 1994 



PROPOSED RULES 



check analyzed. 

(D) The laboratory shall add a known 
spike to a minimum of 10 percent of 
the routine samples (except when the 
method specifies a different 
percentage, i.e. furnace methods) to 
determine if the entire analytical 
system is in control. The spike 
concentration shall not be 
substantially less than the background 
concentration of the sample selected 
for spiking. The spike recoveries 
shall not exceed +.10 percent of the 
true value. 

(E) All compliance samples analyzed by 
graphite furnace shall be spiked to 
determine absence of matrix 
interferences with recoveries +_ 10 
percent of the true value of the spike 
concentration. 

(F) The laboratory shall run a duplicate 
sample every 10 samples with 
duplicate values within +_ 10 percent 
of each other. 

(G) Precision and accuracy data may be 
computed from the analyses of check 
samples of known value used 
routinely in each analytical procedure. 
This data shall be available for 
inspection by the laboratory evaluator. 

(2) Organic Contaminants: 

(A) Quality control specified in the 
approved methods referenced in Rule 
.0241 of this Section shall be 
followed. 

(B) Analysis for regulated volatile organic 
chemicals under 15 A NCAC 18C 
.1515 shall only be conducted by 
laboratories that have received 
conditional approval by EPA or the 
Department according to 40 C.F.R. 
141.24(g)(10) and (11) which is 
hereby incorporated by reference 
including any subsequent amendments 
and editions. A copy is available for 
inspection at the Department of 
Environment, Health, and Natural 
Resources, Division of Laboratory 
Services, 306 North Wilmington 
Street, Raleigh, North Carolina. 
Copies of 40 CFR 141-143 may be 
obtained by contacting the EPA 
Drinking Water Hotline at 
800-426-4791 at no charge. 

(C) Analysis for unregulated volatile 



organic chemicals under 15 A NCAC 
18C .1516 shall only be conducted by 
laboratories approved under Part 
(c)(2)(B) of this Rule. In addition to 
the requirements of Part (c)(2)(B) of 
this Rule, each laboratory analyzing 
for EDB and DBCP shall achieve a 
method detection limit for EDB and 
DBCP of 0.00002 mg/1, according to 
the procedures in Appendix B of 40 
C.F.R. Part 136 which is hereby 
incorporated by reference including 
any subsequent amendments and 
editions. A copy may be obtained at 
no charge by contacting the 
Department of Environment, Health, 
and Natural Resources, Division of 
Laboratory Services, 306 North 
Wilmington Street, Raleigh, North 
Carolina. 

Statutory Authority G.S. 130A-315. 

TITLE 18 - SECRETARY OF STATE 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the N. C. Department of the Secre- 
tary of State, Securities Division intends to adopt 
rule cited as 18 NCAC 6 .1510. 

1 he proposed effective date of this action is 
October 1, 1994. 

1 he public hearing will be conducted at 10:00 
a.m. on July 18, 1994 at the Securities Division 
Conference Room, Suite 100, 300 N. Salisbury St. , 
Raleigh, N. C. 27603. 

MXeason for Proposed Action: To clarify status of 
interests in limited liability companies as "securi- 
ties " within the meaning of the N. C. Securities Act. 

(comment Procedures: Interested persons may 
present statements either orally or in writing at the 
public hearing, or in writing prior to the hearing 
by mail addressed to Mr. Gene Cella, Administra- 
tor, Securities Division, N.C. Dept. of the Secre- 
tary of State, 300 N. Salisbury St., Raleigh, N.C. 
27603. For copies of any information related to 
the hearing, call (919) 733-3924 or write to the 
aforementioned address. The comment period will 
end on August 1, 1994. 



NORTH CAROLINA REGISTER 



July 1, 1994 



476 



PROPOSED RULES 



Editor's Note: This Rule was filed as a tempo- 
rary rule effective May 31, 1994 for a period of 
180 days or until the permanent rule becomes 
effective, whichever is sooner. 

CHAPTER 6 - SECURITIES DIVISION 

SECTION .1500 - MISCELLANEOUS 
PROVISIONS 

.1510 LIMITED LIABILITY COMPANY 
MEMBERSHIP INTERESTS AS 
SECURITIES 

(a) Membership interests, as defined in G.S. 
57C- 1-03(1 5). in a limited liability company shall 
be presumed to be securities within the meaning of 
G.S. 78A-2(11) in either of the following circum- 
stances: 

where the articles of organization of the 
limited liability company provide that 
all members of the limited liability 
company are not necessarily managers 
by. virtue of their status as members; or 
where all members by virtue of their 
status as members are managers of the 
limited liability company and the num- 
ber of members is greater than 15. 

(b) Among the factors that will be considered by 
the Securities Division as evidence offered to rebut 
or support the presumption in Paragraph (a) of this 
Rule are: 

whether investors retain, under the 



ID 



121 



01 



121 



121 



141 



limited liability company's operating 
agreement, the right to exercise practi- 
cal and actual control over the manage- 
rial decisions of the enterprise: 
whether the number of members of the 
limited liability company is so great as 
to render the managerial powers afford- 
ed them by the operating agreement 
insignificant and meaningless; 
whether the promoter has some particu- 
lar or special skill which is necessary 
for the successful operation and man- 
agement of the limited liability compa- 
ny and, without which, the enterprise 
will likely be unsuccessful; and 
whether special circumstances render 
meaningless the managerial powers 
given by the operating agreement to the 
members. 



Statutory Authority G.S. 78A-2(11); 78A-49(a). 



****************** 

liotice is hereby given in accordance with G.S. 
150B-21.2 that the State Personnel Commission 
intends to amend rule cited as 25 NCAC ID .2513. 

1 he proposed effective date of this action is 
October 1, 1994. 

1 he public hearing will be conducted at 9:00 
a.m. on August 11, 1994 at the State Personnel 
Commission Meeting, Auditorium, Institute of 
Government, Hwy. 54, 333 Knapp Building, 
Chapel Hill, NC. 

ixeason for Proposed Action: To prevent employ- 
ee disqualification from eligibility for performance- 
-based pay increases due to supervisor failure to 
assign a summary performance rating. 

Lsomment Procedures: Interested persons may 
present statements either orally or in writing at the 
Public Hearing or in writing prior to the hearing 
by mail addressed to: Patsy Smith Morgan, Office 
of State Personnel, 116 West Jones Street, Ra- 
leigh, N. C. 27603. 

tLditor's Note: This Rule was filed as a tempo- 
rary rule effective July 1, 1994 for a period of 
180 days or until the permanent rule becomes 
effective, whichever is sooner. 

CHAPTER 1 - OFFICE OF STATE 
PERSONNEL 

SUBCHAPTER ID - COMPENSATION 

SECTION .2500 - COMPREHENSIVE 
COMPENSATION SYSTEM 

.2513 BASES FOR AWARDING INCREASES 

(a) Each agency shall have an operative Perfor- 
mance Management System which has been ap- 
proved by the Office of State Personnel using the 
North Carolina Performance Rating Scale. The 
complete requirements for an operative perfor- 
mance management system are defined in 25 
NCAC 10 - Performance Management System. 

(b) Eligibility for increases will be based on the 
most recent work cycle completed and overall 



477 



9:7 



NORTH CAROLINA REGISTER 



July 1, 1994 



PROPOSED RULES 



summary rating received during the previous 
12-month period. 

(c) The performance management system of 
each agency shall ensure that salary increases are 
distributed fairly, consistent with internal equity 
and with the Performance Management System. 
The State Personnel Director shall rescind any 
career growth recognition award or performance 
bonus that does not meet the intent of the provi- 
sions of the performance management rules and 
require the originating agency to reconsider or 
justify the increase. An increase or bonus does 
not meet the intent of the provisions of the perfor- 
mance management rules in the event that increas- 
es or bonuses are distributed: 

(1) in an arbitrary or capricious manner; 

(2) in a manner that violates laws prohibit- 
ing discrimination; or 

(3) to managers or supervisors whose 
failure to comply with the performance 
management rules resulted in the loss of 
an increase or a bonus by employees 
under their supervision. 

(d) No agency shall set limits so as to preclude 
in eligible employee from receiving a career 
growth recognition award, cost-of-living adjust- 
nent, or performance bonus; or to initiate written 
iisciplinary procedures for the purpose of preclud- 
ng an eligible employee from receiving a cost-of— 
iving adjustment. 

(e) In any rating cycle in which an employee 
subject to G.S. 126-7 who was employed on or 



?efore September 1^ 1993 does not receive an 



jverall summary rating m accordance with the 



>erformance management system (25 NCAC IP 



0300). the State Personnel Director shall assign 



mch employee a rating at level three of the North 
Parolina Performance Rating Scale to establish the 



smplovee's eligibility for performance-based pay 



ncreases. If the employee disagrees with the level 



hree rating, he/she may seek review of the perfor- 
nance rating through the agency's Internal Perfor- 



nance Pay Dispute Resolution Procedure. 



tatutory Authority G.S. 126-4; 126-7. 



\:7 NORTH CAROLINA REGISTER July 1, 1994 478 



RRC OBJECTIONS 



The Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



AGRICULTURE 



Markets 



2 NCAC 43L .0113 - Gate Fees 

Agency Revised Rule 
2 NCAC 43L .0304 - Horse Facility 

Agency Revised Rule 
2 NCAC 43L .0320 - Dress of Lessees 

Agency Revised Rule 
2 NCAC 43L .0322 - Display or Sale of Weapons 

Agency Revised Rule 
2 NCAC 43L .0331 - Premiums and Awards 

Agency Revised Rule 
2 NCAC 48 A .1702 - Noxious Weeds 

Agency Revised Rule 

COMMERCE 
Community Assistance 

4 NCAC 19L .0502 - Eligibility Requirements 

Agency Revised Rule 
4 NCAC 19L .0901 - Grant Agreement 

Agency Revised Rule 
4 NCAC 19L . 1302 - Eligibility Requirements 

Agency Revised Rule 

Energy 

4 NCAC 12C .0007- Institutional Conservation Program 
ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 
Coastal Management 

15 A NCAC 7H .1104 - General Conditions 

Agency Revised Rule 

Agency Filed Rule for Codification Over RRC Objection 
15A NCAC 7H .1204 - General Conditions 

Agency Revised Rule 

Agency Filed Rule for Codification Over RRC Objection 
15A NCAC 7H . 1304 - General Conditions 

Agency Revised Rule 

Agency Filed Rule for Codification Over RRC Objection 
15 A NCAC 7H .1404- General Conditions 

Agency Revised Rule 

Agency Filed Rule for Codification Over RRC Objection 
15A NCAC 7H . 1504 - General Conditions 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



05/19/9' 
05/19/9' 
05/19/9' 
05/19/9' 
05/19/9' 
05/19/9' 
05/19/9' 
05/19/9' 
05/19/9' 
05/19/9' 
05/19/9' 
05/19/9 



RRC Objection 


05/19/9' 


Obj. Removed 


05/19/9' 


RRC Objection 


05/19/9' 


Obj. Removed 


05/19/9' 


RRC Objection 


05/19/9' 


Obj. Removed 


05/19/9' 


RRC Objection 


06/16/9' 



RRC Objection 
RRC Objection 

Eff 
RRC Objection 
RRC Objection 

Eff. 
RRC Objection 
RRC Objection 

Eff. 
RRC Objection 
RRC Objection 

Eff. 
RRC Objection 



05/19/9 
05/19/9 
07/01/9- 
05/19/9 
05/19/9 
07/01/9- 
05/19/9 
05/19/9 
07/0119- 
05/19/9 
05/19/9- 
07/01/9- 
05/19/9 



479 



9:7 



NORTH CAROLINA REGISTER 



July 1, 199 



RRC OBJECTIONS 



Agency Revised Rule 

Agency Filed Rule for Codification Over RRC Objection 
ISA NCAC 7H .1604- General Conditions 

Agency Revised Rule 

Agency Filed Rule for Codification Over RRC Objection 
ISA NCAC 7H .1704- General Conditions 

Agency Revised Rule 

Agency Filed Rule for Codification Over RRC Objection 
15 A NCAC 7H .1804- General Conditions 

Agency Revised Rule 

Agency Filed Rule for Codification Over RRC Objection 
ISA NCAC m .1904 - General Conditions 

Agency Revised Rule 

Agency Filed Rule for Codification Over RRC Objection 
ISA NCAC 7H .2104 - General Conditions 

Agency Revised Rule 

Agency Filed Rule for Codification Over RRC Objection 

Departmental Rules 

ISA NCAC U .0701 - Public Necessity: Health: Safety and Welfare 
HUMAN RESOURCES 
Children's Services 



RRC Objection 


OS/19194 


Eff. 


07/01/94 


RRC Objection 


OS/19194 


RRC Objection 


05/19/94 


Eff. 


07/01/94 


RRC Objection 


05/19/94 


RRC Objection 


05/19/94 


Eff. 


07/01/94 


RRC Objection 


05/19/94 


RRC Objection 


05/19/94 


Eff 


07/01/94 


RRC Objection 


05/19/94 


RRC Objection 


05/19/94 


Eff. 


07/01/94 


RRC Objection 


05/19/94 


RRC Objection 


05/19/94 


Eff 


07/01/94 


RRC Objection 


06/16/94 



10 NCAC 41 F .0704 - Physical Facility 
Agency Revised Rule 

Facility Services 

10 NCAC 3L .0906 - Compliance with Laws 
Rule Withdrawn by Agency 

INSURANCE 

Agent Services Division 

11 NCAC 6 A .0802 - Licensee Requirements 
Rule Withdrawn by Agency 

JUSTICE 

Departmental Rules 

12 NCAC 1 .0212 - Grievance Procedure 
Agency Repealed Rule 

LABOR 

OSHA 

13 NCAC 7 A .0707 - Kriances and Other Relief Under Section 95-1 32(a) 
Agency Revised Rule 

13 NCAC 7 A .0708 - \driances and Other Relief Under Section 95-1 32(b) 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 



04/21/94 
04/21/94 



04/21/94 



05/19/94 



05/19/94 
05/19/94 



RRC Objection 04/21/94 
Obj. Removed 04/21/94 
RRC Objection 04/21/94 



h7 



NORTH CAROLINA REGISTER 



July 1, 1994 



480 



RRC OBJECTIONS 






Agency Revised Rule 


Ob). Removed 


04/21/94 


13 NCAC 7 A .0709 - Modification: Revocation: and Renewal of Rules or Orders 


RRC Objection 


04/21/94 


Agency Revised Rule 


Obj. Removed 


04/21/94 


13 NCAC 7 A .0710 - Action on Applications 


RRC Objection 


04/21/94 


Agency Revised Rule 


Obj. Removed 


04/21/94 


13 NCAC 7 A .0711 - Request for Hearings on Applications 


RRC Objection 


04/21/94 


Agency Revised Rule 


Obj. Removed 


04/21/94 


LICENSING BOARDS AND COMMISSIONS 






Chiropractic Examiners 






21 NCAC 10 .0303 - Solicitation of Auto Accident Victims 






Agency Withdrew Rule 




05/19/94 


Cosmetic Art Examiners 






21 NCAC 14H .0008 - Floor Coverings 


RRC Objection 


05/19/94 


Agency Revised Rule 


Obj. Removed 


05/19/94 


21 NCAC 14H .0011 - Cleanliness of Operators 


RRC Objection 


05/19/94 


Agency Revised Rule 


Obj. Removed 


05/19/94 


21 NCAC 14H .0018 - Systems of Grading Beauty Establishments 


RRC Objection 


05/19/94 


Agency Revised Rule 


Obj. Removed 


05/19/94 


Dental Examiners 






21 NCAC 161 .0003 - License Void Upon Failure to Renew 


RRC Objection 


04/21/94 


Agency Revised Rule 


Obj. Removed 


04/21/94 


21 NCAC 16R .0002 - Approved Courses and Sponsors 


RRC Objection 


04/21/94 


Agency Revised Rule 


Obj. Removed 


04/21/94 


General Contractors 






21 NCAC 12 .0205 - Filing Deadline/ APP Seeking Qual/Emp /Another 


RRC Objection 


05/19/94 


Agency Revised Rule 


Obj. Removed 


05/19/94 


Medical Examiners 






21 NCAC 32P .0001 - Name of Limited Liability Company 


RRC Objection 


05/19/94 


Agency Revised Rule 


Obj. Removed 


05/19/94 


21 NCAC 320 .0001 - Definitions 


RRC Objection 


05/19/94 


Agency Revised Rule 


Obj. Removed 


05/19/94 


21 NCAC 320 .0002 - Qualifications for License 


RRC Objection 


05/19/94 


Agency Revised Rule 


Obj. Removed 


05/19/94 


21 NCAC 320 .0003 - Temporary License 


RRC Objection 


05/19/94 


Agency Revised Rule 


Obj. Removed 


05/19/94 


21 NCAC 320 .0005 - Annual Registration 


RRC Objection 


05/19/94 


Agency Revised Rule 


Obj. Removed 


05/19/94 


21 NCAC 320 .0007 - Exemption from License 


RRC Objection 


05/19/94 


Agency Revised Rule 


Obj. Removed 


05/19/94 


21 NCAC 320 .0015 - Assumption of Professional Liability 


RRC Objection 


05/19/94 


Agency Revised Rule 


Obj. Removed 


05/19/94 


21 NCAC 320 .0017 - Disciplinary Authority 


RRC Objection 


05/19/94 


Agency Revised Rule 


Obj. Removed 


05/19/94 


21 NCAC 320 .0021 - Fees 


RRC Objection 


05/19/94 


481 9:7 NORTH CAROLINA REGISTER 


July 1, 1994 









RRC OBJECTIONS 








Agency Revised Rule 




Obj. Removed 


05/19/94 


21 NCAC 32Q .0101 - Definitions 




RRC Objection 


05/19/94 


Agency Revised Rule 




Obj. Removed 


05/19/94 


21 NCAC 32Q .0208 - Confidentiality 








Rule Withdrawn by Agency 






05/19/94 


Real Estate Commission 








21 NCAC 58A .1711 - Continuing Education Required of Nonresident 


Licensees 


RRC Objection 


05/19/94 


Agency Revised Rule 




Obj. Removed 


05/19/94 


21 NCAC 58C .0104 - Scope: Duration and Renewal of Approval 




RRC Objection 


05/19/94 


Agency Revised Rule 




Obj. Removed 


05/19/94 


21 NCAC 58C .0105 - Withdrawal or Denial of Approval 




RRC Objection 


05/19/94 


Agency Revised Rule 




Obj. Removed 


05/19/94 


27 NCAC 58C .0218 - Licensing Exam Confidentiality: School Perform. /Lie 


RRC Objection 


05/19/94 


Agency Revised Rule 




Obj. Removed 


05/19/94 


11 NCAC 58C .0309 - Certification of Course Completion 




RRC Objection 


05/19/94 


Agency Revised Rule 




Obj. Removed 


05/19/94 


21 NCAC 58E .0102 - Update Course Component 




RRC Objection 


05/19/94 


Agency Revised Rule 




Obj. Removed 


05/19/94 


21 NCAC 58E .0104 - Criteria for Approval of Update Course Sponsor 


RRC Objection 


05/19/94 


Agency Revised Rule 




Obj. Removed 


05/19/94 


11 NCAC 58E .0203 - Application and Criteria for Original Approval 




RRC Objection 


05/19/94 


Agency Revised Rule 




Obj. Removed 


05/19/94 


11 NCAC 58E .0206 - Request for Videotape 




RRC Objection 


05/19/94 


Agency Revised Rule 




Obj. Removed 


05/19/94 


11 NCAC 58E .0304 - Criteria for Elective Course Approval 




RRC Objection 


05/19/94 


Agency Revised Rule 




Obj. Removed 


05/19/94 


U NCAC 58E .0306 - Elective Course Instructors 




RRC Objection 


05/19/94 


Agency Revised Rule 




Obj. Removed 


05/19/94 


U NCAC58E .0308 - Request for Videotape 




RRC Objection 


05/19/94 


Agency Revised Rule 




Obj. Removed 


05/19/94 


11 NCAC 58E .0402 - Sponsor Eligibility 




RRC Objection 


05/19/94 


Agency Revised Rule 




Obj. Removed 


05/19/94 


11 NCAC 58E . 0406 - Course Rosters, Completion Certificated and Evaluations 


RRC Objection 


05/19/94 


Agency Revised Rule 




Obj. Removed 


05/19/94 


U NCAC 58E .0510 - Monitoring Attendance 




RRC Objection 


05/19/94 


Agency Revised Rule 




Obj. Removed 


05/19/94 


•UBLIC EDUCATION 








Elementary and Secondary Education 








6 NCAC 6C . 0307 - Certificate Renewal 




RRC Objection 


04/21/94 


Agency Revised Rule 




RRC Objection 


04/21/94 


Agency Revised Rule 




Obj. Removed 


05/19/94 


6 NCAC 6E .0202 - Interscholastic Athletics 




RRC Objection 


04/21/94 


Agency Revised Rule 




Obj. Removed 


05/19/94 


tEVENUE 








•ales and Use Tax 








7 NCAC 7B .2608 - Plumbing: Heating: Air Cond/Bec Contractors: 


Purchases 


RRC Objection 


05/19/94 


7 NCAC 7B .2609 - Plumbing: Heating: Air Cond/Bec Contractors: 


Sales 


RRC Objection 


05/19/94 


•7 NORTH CAROLINA REGISTER 


Julyl, 


1994 


482 



RRC OBJECTIONS 



17 NCAC 7B .5462 - White Goods Disposal Tax Report Form: E-500W 
17 NCAC 7B .5464 - Ice Certificate Form: E-599Y 



RRC Objection 
RRC Objection 



05/19/94 
05/19/94 



STATE PERSONNEL 
Office of State Personnel 

25 NCAC ID .2401 - Career Growth Recognition Award 

Rule Withdrawn by Agency 05/19/94 

25 NCAC ID .2403 - Employees Eligible/Career Growth Recognition Award RRC Objection 05/19/94 

Agency Revised Rule Obj. Removed 05/19/94 

25 NCAC ID . 2408 - Effective Date of Cost-of-Living Adjustment RRC Objection 05/19/94 

Agency Revised Rule Obj. Removed 05/19/94 

25 NCAC ID .2411 - Employees Eligible For Performance Bonus RRC Objection 05/19/94 

Agency Revised Rule Obj. Removed 05/19/94 



483 



9:7 



NORTH CAROLINA REGISTER 



July 1, 1994 



CONTESTED CASE DECISIONS 



This Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina 's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



VDMINISTRATION 

Vorth Carolina Council for Women 

%mily Violence Prevention Services v. N.C. Council for Women 

UXOHOLIC BEVERAGE CONTROL COMMISSION 

Ucoholic Beverage Control Comm. v. Entertainment Group, Inc. 
tayvon Stewart v. Alcoholic Beverage Control Commission 
Ucoholic Beverage Control Comm. v. Branchland, Inc. 
Jcoholic Beverage Control Comm. v. Peggy Sutton Walters 
tussell Bernaid Speller d/b/a Cat's Disco v. Alcoholic Bev Ctl Comm. 
ilcoholic Beverage Control Comm. v. Branchland, Inc. 
Idward Ogunjobi, Club Piccadilli v. Alcoholic Beverage Control Comm. 
tobert Kovalaskc, Nick Pikoulas, Joseph Marshburn, Evangelos Pikoulas, 
d/b/a Our Mom's BBQ v. Alcoholic Beverage Control Commission 
Christine George Williams v. Alcoholic Beverage Control Comm. 
Jcoholic Beverage Control Comm. v. Raleigh Limits, Inc. 
'coholic Beverage Control Comm. v. COLAP Enterprises, Inc. 
Jcoholic Beverage Control Comm. v. Ms. Lucy Jarrell Powell 
Ir. & Mrs. Josh Bullock Jr. v. Alcoholic Beverage Control Comm. 
rome Crawford v. Alcoholic Beverage Control Commission 

OMMERCE 

avings Institutions Division 
imes E. Byers, et al v. Savings Institutions 
ORRECTION 
ivision of Prisons 

ene Strader v. Department of Correction 
RIME CONTROL AND PUBLIC SAFETY 
Victims Compensation Commission 



unes Hugh Baynes v. Crime Victims Compensation Commission 
oss T. Bond v. Victims Compensation Commission 
mes A. Canady v. Crime Victims Compensation Commission 
Irginia Roof v. Department of Crime Control & Public Safety 
aren C. Tilghman v. Crime Victims Compensation Commission 
)eemary Taylor v. Crime Victims Compensation Commission 
olet E. Kline v. Crime Victims Compensation Commission 
mes Benton v. Crime Victims Compensation Commission 
rcy Clark v. Crime Victims Compensation Commission 
Richard Spencer v. Crime Victims Compensation Commission 
irbara Henderson v. Crime Victims Compensation Commission 
lirley Handsome v. Crime Victims Compensation Commission 
rorgeann Young v. Crime Victims Compensation Commission 
rwrence L. Tyson v. Crime Victims Compensation Commission 
'man L. Chapman v. Crime Victims Compensation Commission 
ouglas and Virginia Wilson v. Crime Victims Compensation Comm. 



94 DOA 0242 



West 



93 COM 1622 Chess 



04/13/94 



93 ABC 0719 


Gray 


03/02/94 


93 ABC 0793 


Nesnow 


04/11/94 


93 ABC 0892 


Morgan 


06/03/94 


93 ABC 0906 


Mann 


03/18/94 


93 ABC 0937 


Morrison 


03/07/94 


93 ABC 0993 


Morgan 


06/03/94 


93 ABC 1024 


West 


03/03/94 


93 ABC 1029 


Gray 


03/04/94 


93 ABC 1057 


Bee ton 


04/21/94 


93 ABC 1485 


Mann 


03/11/94 


94 ABC 0060 


Nesnow 


06/07/94 


94 ABC 0070 


Morgan 


06/06/94 


94 ABC 0124 


Morgan 


06/06/94 


94 ABC 0125 


Morgan 


06/06/94 



03/01/94 



94 DOC 0252 Morrison 03/21/94 



93 CPS 0801 


West 


03/28/94 


9:2 NCR 114 


93 CPS 1104 


West 


04/21/94 




93 CPS 1108 


Gray 


03/28/94 




93 CPS 1347 


Nesnow 


03/24/94 




93 CPS 1608 


Reilly 


05/17/94 


9:6 NCR 407 


93 CPS 1626 


Nesnow 


05/25/94 




93 CPS 1670 


Morgan 


06/13/94 




94 CPS 0034 


Chess 


06/14/94 




94 CPS 0127 


Reilly 


04/19/94 




94 CPS 0157 


Chess 


06/14/94 




94 CPS 0259 


Morrison 


04/07/94 




94 CPS 0286 


Gray 


04/28/94 




94 CPS 0292 


Reilly 


04/18/94 




94 CPS 0368 


Gray 


04/26/94 




94 CPS 0415 


Chess 


06/02/94 




94 CPS 0417 


Reilly 


06/07/94 





7 



_, 



NORTH CAROLINA REGISTER 



July 1, 1994 



484 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Michelle L. Wilcox v. Crime Victims Compensation Commission 
Michael G. Low v. Crime Victims Compensation Commission 
Mary E. Haskins v. Crime Victims Compensation Commission 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Ron D. Graham, Suzanne C. Graham v. Robert Cobb, Mecklenburg Cty 
Patricia D. Solomon v. Macon County Health Department 
Brook Hollow Estates v. Environment, Health, & Natural Resources 
Sam's Club #8219 v. Mecklenburg County Health Department 
Eugene Crawford & Nancy P. Crawford v. Macon County Health Dept. 

Coastal Management 

Roger Fuller v. EHNR, Divs. of Coastal Mgmt & Environmental Mgmt 
Roger Fuller v. EHNR, DivB. of Coastal Mgmt & Environmental Mgmt 
Gary E. Montalbine v. Division of Coastal Management 
Palcy-Midgett Partnership v. Coastal Resources Commission 

Environmental Health 

Jane C. CMalley, Melvin L. Cartwright v. EHNR & District Hlth Dept 

Pasquotank-Perquimans-Camden-Chowan 
Environment, Health, & Natural Res. v. Clark Harris Si, Jessie Lee Harris 
Sidney S. Tate Jr. v. Dept. of Environment, Health, & Natural Resources 
Scotland Water Co., Laurin Lakes v. Environment, Health, & Nat. Res. 
Floyd Benn Williams v. Dept. of Environment, Health, & Nat. Res. 

Environmental Management 

David Springer v. Dept. of Environment, Health, & Natural Resources 
Petroleum Installation Equipment Co., Inc. v. Env., Health & Nat. Res. 
Jack Griffin v. Dept. of Environment, Health, and Natural Resources 

Marine Fisheries 



94 CPS 0467 
94 CPS 0524 
94 CPS 1406 



Reilly 06/07/94 

Morrison 06/13/94 
Gray 03/17/94 



93 EHR 1017 


Bee ton 


05/31/94 






93 EHR 1777 


West 


05/23/94 






94 EHR 0093 


West 


06/03/94 






94 EHR 0329 


Nesnow 


06/15/94 


9:7 NCR 


496 


94 EHR 0500 


Gray 


06/10/94 







89 EHR 1378"* Gray 04/07/94 

90 EHR 0017* Gray 04/07/94 

93 EHR 1792 Nesnow 03/21/94 

94 EHR 0315 Gray 06/01/94 



91 EHR 0838 


Becton 


04/06/94 


93 EHR 0924 


Bee ton 


03/03/94 


94 EHR 0005 


Reilly 


05/24/94 


94 EHR 0200 


Nesnow 


04/27/94 


94 EHR 0333 


Reilly 


05/18/94 



92 EHR 1797 


Morgan 


05/19/94 


93 EHR 0531 


Chess 


03/21/94 


93 EHR 1030 


Bee ton 


03/21/94 



Robert I. Swinson, Virginia S. Swinson v. EHNR, Div/Marine Fisheries 93 EHR 0394 Gray 



Solid Waste Management 

Roger Sessoms v. EHNR/ Asbestos Hazard Management Branch 93 EHR 0951 

Bertie Citizens Action Coalition, Inc.; Willaid J. Oliver, Reginald Early, 93 EHR 1045 

Herbert Jenkins, Jr. , Lind wood Earl Tripp, Willie Warren Tripp, Mary 
Alice Cherry, and Kathy Burden v. EHNR, Solid Waste Management 
Division, and East Carolina Environmental, Inc., Addington Environmental, 
Inc., et al. 



04/11/94 



Gray 03/28/94 

Morrison 04/06/94 



9:3 NCR 214 



HUMAN RESOURCES 



Brenda C. Robinson v. Department of Human Resources 
Betty Rhodes v. Department of Human Resources 

Division of Child Development 

Judith Fridley v. Div. of Child Development/ Abuse/Neglect Unit 

DHR, Division of Child Development v. Joyce Gale 

Gloria C. Haith v. Department of Human Resources 

Gloria C. Haith v. Daycare Consultant 

Charles E. Smith v. Department of Human Resources 

Living Word Day Care, Jonathan Lankford v. Dept. of Human Resources 



94 DHR 0365 
94 DHR 0501 



West 
Morrison 



06/01/94 
06/02/94 



93 DHR 0973 


Morrison 


03/08/94 


93 DHR 1344 


Gray 


04/28/94 


93 DHR 1707 


Nesnow 


03/22/94 


93 DHR 1787 


Nesnow 


03/14/94 


93 DHR 1797 


Nesnow 


03/21/94 


94 DHR 0168 


Nesnow 


03/23/94 



" Consolidated Cases. 



485 



9:7 



NORTH CAROLINA REGISTER 



July 1, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



Facility Senieei 

Charles E. Hunter, Jr., M.D. & Coastal Perfusion Svcs, Inc. v. Cert of 
Need Section, Div of Facility Svcs, DHR, and Wilmington Perfusion 
Corp. and Howard F. Marks, Jr., M.D. 

Presbyterian-Orthopaedic Hospital v. Department of Human Resources 

Judy Hobcn Wallace v. Department of Human Resources 

Lowell Stafford v. Department of Human Resources 

Biiiaox of Medical Assistance 

JR., by and through her agent & Personal Rep., Hank Neal v. DHR 

David Yott v. Department of Human Resources 

Division of Medical Assistance v. Catawba Cry Dept. of Social Services 

Division of Social Services 

Evelyn Moore v. Department of Human Resources 

Child Support Enforcement Section 

William Heckstall v. Department of Human Resources 

Luther Hatcher v. Department of Human Resources 

Bryan Jeffrey Cole v. Department of Human Resources 

Anthony E. Bullajd v. Department of Human Resources 

Dexter L. Chambers v. Department of Human Resources 

Ronald E. Johnson v. Department of Human Resources 

Roger Moore v. Department of Human Resources 

Alvin Lee Martin v. Department of Human Resources 

Robert Young v. Department of Human Resources 

Henry M. Dillard v. Department of Human Resources 

Antonio Townsend v. Department of Human Resources 

Troy E. Pinkney v. Department of Human Resources 

Anthony A. Macon v. Department of Human Resources 

Walter Lee Corbett v. Department of Human Resources 

Joe Louis Mayo v. Department of Human Resources 

Bobby Lewis Smith v. Department of Human Resources 

Louis C. Cade v. Department of Human Resources 

Nash Andrew Newsomc v. Department of Human Resources 

James E. Watson v. Department of Human Resources 

Robert Lee Barrett v. Department of Human Resources 

Betty A. Williams, Fred E. Jones v. Department of Human Resources 

Eric G. Sykes v. Department of Human Resources 

Willie C. Hollis v. Department of Human Resources 

Bernadetfc Cook v. Department of Human Resources 

Lem Person v. Department of Human Resources 

Randall R. Rhodes v. Department of Human Resources 

Dennis W Nolan v. Department of Human Resources 

Robert Calvin Connor v. Department of Human Resources 

lames D. Williams v. Department of Human Resources 

Vaughn D. Pearsall v. Department of Human Resources 

King D. Graham v. Department of Human Resources 

Sidney Ray Tuggle Jr. v. Department of Human Resources 

Gregory N. Winley v. Department of Human Resources 

George Aaron Collins v. Department of Human Resources 

Samuel L. Dodd v. Department of Human Resources 

William A. Sellers v. Department of Human Resources 

Kenneth W. Cooper v. Department of Human Resources 

Hades W. Norwood Jr. v. Department of Human Resources 

Javid L. Terry v. Department of Human Resources 

Steven A. Elmquist v. Department of Human Resources 

(elvin Dean Jackson v. Department of Human Resources 

Dennis E. Fountain Jr. v. Department of Human Resources 

Mark E. Rogers v. Department of Human Resources 

Edna %nCannon v. Department of Human Resources 

)aniel Thomas Hefele v. Department of Human Resources 

jilbert J. Gutierrez v. Department of Human Resources 

Uton D. Johnson v. Department of Human Resources 



CASE 
NUMBER 



AIJ 



DATE OF 
DECISION 



93 DHR 0746 Morgan 04/11/94 



93 DHR 0805 
93 DHR 0935 
93 DHR 1381 



93 DHR 0528 
93 DHR 1113 
93 DHR 1778 



94 DHR 0293 



Reilly 03/11/94 

Gray 05/23/94 

Gray 04/15/94 



Gray 
Gray 
West 



Reilly 



04/27/94 
04/05/94 
03/04/94 



04/15/94 



93 CSE 1077 


Reilly 


03/14/94 


93 CSE 1082 


Mann 


05/24/94 


93 CSE 1091 


Becton 


03/30/94 


93 CSE 1094 


Nesnow 


06/13/94 


93 CSE 1124 


West 


03/28/94 


93 CSE 1 125 


Becton 


03/30/94 


93 CSE 1127 


Becton 


04/14/94 


93 CSE 1128 


Nesnow 


04/04/94 


93 CSE 1133 


Reilly 


04/18/94 


93 CSE 1135 


Nesnow 


06/13/94 


93 CSE 1139 


Becton 


03/30/94 


93 CSE 1148 


Mann 


03/29/94 


93 CSE 1 149 


Gray 


04/26/94 


93 CSE 1150 


Reilly 


03/30/94 


93 CSE 1161 


West 


04/19/94 


93 CSE 1 162 


Nesnow 


06/16/94 


93 CSE 1166 


Morrison 


06/16/94 


93 CSE 1 170 


Mann 


03/17/94 


93 CSE 1171 


Gray 


04/26/94 


93 CSE 1172 


Morrison 


04/20/94 


93 CSE 1178 


Nesnow 


04/20/94 


93 CSE 1181 


Becton 


04/20/94 


93 CSE 1191 


Becton 


05/09/94 


93 CSE 1202 


Gray 


04/27/94 


93 CSE 1214 


Morrison 


06/16/94 


93 CSE 1219 


Nesnow 


06/16/94 


93 CSE 1254 


Morrison 


04/27/94 


93 CSE 1258 


West 


04/19/94 


93 CSE 1259 


West 


04/19/94 


93 CSE 1267 


Becton 


04/20/94 


93 CSE 1275 


Becton 


05/18/94 


93 CSE 1307 


West 


04/25/94 


93 CSE 1316 


Becton 


06/14/94 


93 CSE 1331 


West 


04/25/94 


93 CSE 1357 


Gray 


03/31/94 


93 CSE 1359 


Morrison 


04/20/94 


93 CSE 1364 


West 


04/27/94 


93 CSE 1385 


West 


06/13/94 


93 CSE 1386 


Mann 


05/18/94 


93 CSE 1392 


Reilly 


04/29/94 


93 CSE 1394 


West 


06/13/94 


93 CSE 1414 


Chess 


05/13/94 


93 CSE 1415 


Mann 


05/03/94 


93 CSE 1417 


Morrison 


06/14/94 


93 CSE 1432 


Morrison 


04/28/94 


93 CSE 1433 


Morrison 


05/13/94 


93 CSE 1434 


Reilly 


04/29/94 



PUBLISHED DECISION 
REGISTER CITATION 



>:7 



NORTH CAROLINA REGISTER 



July 1, 1994 



486 



CONTESTED CASE DECISIONS 



AGENCY 



Chester Sanders v. Department of Human Resources 
Rodney Guyton v. Department of Human Resources 
Donald W. Clark v. Department of Human Resources 
William E. David Jr. v. Department of Human Resources 
John J. Gabriel v. Department of Human Resources 
Timothy D. Evans v. Department of Human Resources 
Billy Edward Smith v. Department of Human Resources 
Allen D. Terrell v. Department of Human Resources 
Ray C. Moses v. Department of Human Resources 
Mickey Bridget! v. Department of Human Resources 
Bart Ransom v. Department of Human Resources 
William H. Simpson Sr. v. Department of Human Resources 
James D. McClure Jr. v. Department of Human Resources 
Douglas L. Cherrix v. Department of Human Resources 
Dwayne Lamont Thompson v. Department of Human Resources 
Horace Lee Bass v. Department of Human Resources 
Michael Wilder v. Department of Human Resources 
James A. Cephas v. Department of Human Resources 
Mark E. Campbell v. Department of Human Resources 
Barriet Easterling v. Department of Human Resources 
Wade A. Burgess v. Department of Human Resources 
Billy Dale Beaney v. Department of Human Resources 
James E. Wiggins Sr. v. Department of Human Resources 
Timothy J. Jones v. Department of Human Resources 
Randall E. Hunter v. Department of Human Resources 
Cyrus R. Luallen v. Department of Human Resources 
Alton E. Simpson Jr. v. Department of Human Resources 
Johnny T. Usher v. Department of Human Resources 
Charles Darrell Matthews v. Department of Human Resources 
John William \&nce Jr. v. Department of Human Resources 
Brian Gilmore v. Department of Human Resources 
Jesse Jeremy Bullock v. Department of Human Resources 
Charles F. McKirahan Jr. v. Department of Human Resources 
Benjamin J. Stroud v. Department of Human Resources 
Tony A. Miles v. Department of Human Resources 
Dwayne L. Allen v. Department of Human Resources 
Joe C. Dean v. Department of Human Resources 
Royston D. Blandfond III v. Department of Human Resources 

JUSTICE 

Alarm Systems Licensing Board 

Alarm Systems Licensing Boaid v. George P. Baker 

Private Protective Services Board 

Larry C. Hopkins v. Private Protective Services Board 
Stephen M. Rose v. Private Protective Services Board 
Lemuel Lee Clark Jr. v. Private Protective Services Board 

Training and Standards Division 

Curtiss Lance Jteteat v. Criminal Justice Ed. & Training Stds. Comm. 
Willie David Moore v. Criminal Justice Ed. &. Training Stds. Comm. 
Glenn Travis Stout v. Criminal Justice Ed. & Training Stds. Comm. 
Gregory Blake Manning v. Criminal Justice Ed. & Training Stds. Comm. 

MORTUARY SCIENCE 

Mortuary Science v. Perry J. Brown, & Brown's Funeral Directors 

PUBLIC EDUCATION 

Nancy Watson v. Boaid of Education 

Janet L. Wilcox v. Carteret County Boaid of Education 



CASE 




DATE OF PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION REGISTER CITATION 


93 CSE 1437 


West 


04/19/94 


93 CSE 1439 


West 


04/21/94 


93 CSE 1441 


Nesnow 


05/13/94 


93 CSE 1442 


Nesnow 


05/02/94 


93 CSE 1452 


Chess 


05/16/94 


93 CSE 1460 


Reilly 


04/28/94 


93 CSE 1461 


West 


04/19/94 


93 CSE 1463 


Nesnow 


05/02/94 


93 CSE 1464 


Nesnow 


04/28/94 


93 CSE 1468 


Bee ton 


05/24/94 


93 CSE 1495 


Morrison 


04/29/94 


93 CSE 1497 


West 


04/19/94 


93 CSE 1500 


Bee ton 


05/13/94 


93 CSE 1512 


Gray 


05/13/94 


93 CSE 1515 


MorriBon 


04/21/94 


93 CSE 1520 


Morrison 


05/13/94 


93 CSE 1521 


Reilly 


04/28/94 


93 CSE 1523 


Reilly 


05/13/94 


93 CSE 1537 


Nesnow 


05/19/94 


93 CSE 1560 


Mann 


05/18/94 


93 CSE 1568 


Morrison 


04/28/94 


93 CSE 1569 


Morrison 


05/13/94 


93 CSE 1571 


Morrison 


05/13/94 


93 CSE 1576 


West 


04/19/94 


93 CSE 1579 


West 


04/19/94 


93 CSE 1583 


Nesnow 


06/16/94 


93 CSE 1591 


Bee ton 


04/20/94 


93 CSE 1592 


Chess 


05/19/94 


93 CSE 1596 


West 


06/13/94 


93 CSE 1597 


Becton 


05/13/94 


93 CSE 1615 


Chess 


05/13/94 


93 CSE 1632 


Morrison 


06/14/94 


93 CSE 1640 


West 


06/14/94 


93 CSE 1648 


Becton 


05/19/94 


93 CSE 1654 


Mann 


05/24/94 


93 CSE 1655 


Mann 


05/17/94 


93 CSE 1715 


Gray 


05/23/94 


94 CSE 0095 


West 


04/19/94 



93 DOJ 0457 



93 DOJ 1618 

94 DOJ 0359 
94 DOJ 0360 



93 BMS 0532 



93 EDC 0234 
93 EDC 0451 



Nesnow 



Morrison 

Nesnow 

Nesnow 



03/10/94 



03/07/94 
05/19/94 
05/19/94 



93 DOJ 0231 


Chess 


03/28/94 


93 DOJ 1071 


Nesnow 


04/11/94 


93 DOJ 1409 


Gray 


03/03/94 


94 DOJ 0048 


Gray 


03/29/94 



Chess 



Chess 
Mann 



03/28/94 



02/28/94 
02/21/94 



9:3 NCR 218 



9:2 NCR 108 



487 



9:7 



NORTH CAROLINA REGISTER 



July 1, 1994 



CONTESTED CASE DECISIONS 



AGENCY 

STATE HEALTH BENEFITS OFFICE 

Linda C. Campbell v. Teacheis & St Emp Major Medical Plan 
Timothy L. Coggina v. Teacheis' & St Emp Comp Major Med Plan 

STATE PERSONNEL 

Agricultural and Technical State University 

Linda D. Williams v. Agricultural and Technical State Univeisity 
Juanita D. Murphy v. Agricultural and Technical State University 
Thomas M. Simpson v. Agricultural and Technical State University 

Department of Agriculture 

Donald H. Crawford v. Department of Agricultue 

Catawba County 

Sandra J. Cunningham v. Catawba County 

North Carolina Central University 

Ha-Yilyah Ha-She'B v. NCCU 

Cherry Hospital 

Charles F. Fields v. Cherry Hospital 

Department of Commerce 

Ruth Daniel-Perry v. Department of Commerce 

Department of Correction 

Leland K. Williams v. Department of Correction 

Elroy Lewis v. North Central Area - Dept of Correction, Robert Lewis 

Bert Eeworthy v. Department of Correction 

Merron Burrus v. Department of Correction 

Alfred B. Hunt v. Department of Correction 

Adrian E. Graham v. Intensive Probation/Ruole 

Department of Crime Control and Public Safety 

Don R. Massenburg v. Department of Crime Control & Public Safety 
Fred L. Kearney v. Department of Crime Control & Public Safety 
Sylvia Nance v. Department of Crime Control & Public Safety 

Durham County Health Department 

Lylla Denell Stockton v. Durham County Health Department 

Employment Security Commission of North Carolina 

Rejeanne B. LeFrancois v. Employment Security Commission of N.C. 

Department of Environment, Health, and Natural Resources 

Division of Marine Fisheries 

William D. Nicely v. Environment, Health, & Natural Resources 

Department of Human Resources 

Inez Latla v. Department of Human Resources 

Charla S. Davis v. Department of Human Resources 

Rose Mary Taylor v. Department of Human Resources, Murdoch Center 

David R. Rodgers v. Jimmy Summerville, Stonewall Jackson School 



CASE 
NUMBER 



93 INS 0410 
93 INS 0929 



94 OSP 0108 



93 OSP 1097 



93 OSP 0875 



94 OSP 0498 



93 OSP 0725 



93 OSP 1780 



93 OSP 1069 



92 OSP 1454 



ALJ 



DATE OF 
DECISION 



Bee ton 

Morrison 



Reilly 



Reilly 



Bee ton 



Chess 



Gray 



West 



Bee ton 



04/22/94 
03/04/94 



93 OSP 0089 


Chess 


03/23/94 


93 OSP 0708 


Morrison 


03/16/94 


93 OSP 1393 


Gray 


03/24/94 



05/23/94 



04/29/94 



04/13/94 



Morrison 06/15/94 



03/04/94 



91 OSP 1287 


Chess 


02/22/94 


92 OSP 1770 


Bee ton 


05/24/94 


93 OSP 0711 


Chess 


04/21/94 


93 OSP 1145 


West 


06/01/94 


94 OSP 0243 


Reilly 


04/20/94 


94 OSP 0261 


Morrison 


04/26/94 



90 OSP 0239 


Chess 


04/28/94 


91 OSP 0401 


West 


03/18/94 


92 OSP 1463 


Reilly 


03/21/94 



05/25/94 



04/08/94 



05/04/94 



93 OSP 0830 


Bee ton 


03/28/94 


93 OSP 1762 


Gray 


03/03/94 


93 OSP 0047 


Gray 


05/06/94 


94 OSP 0087 


Chess 


03/16/94 



9:7 



NORTH CAROLINA REGISTER 



July 1, 1994 



PUBLISHED DECISION 
REGLSTER CITATION 



9:4 NCR 292 



9:3 NCR 211 



9:1 NCR 63 



9:6 NCR 395 



9:5 NCR 333 



488 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



93 OSP 0728 

93 OSP 1604 

• Abuse Services 

94 OSP 0214 



Chess 



Becton 



ReiUy 



Durham County Department of Social Services 
Belinda F. Jones v. Daniel Hudgins, Durham Cty Dept of Social Svcs 

Menial Health/Mental Retardation 
Yvonne G. Johnson v. Blue Ridge Menial Health 

Vbke County Mental Health, Developmental Disabilities, and Substance , 

Julia Morgan Brannon v. Wake County MD/DD/SAS 

N.C. State University 

Laura K. Reynolds v. N.C. State University - Dept. of Public Safety 92 OSP 0828 Morgan 

Department of Transportation 

Glenn I. Hodge Jr. v. Samuel Hunt, Sec'y Dept of Transportation 
Glenn I. Hodge Jr. v. Samuel Hunt, Sec'y Dept of Transportation 
Betsy Johnston Powell v. Department of Transportation 
Clyde Lem Hairston v. Department of Transportation 
Henry C. Puegh v. Department of Transportation 

University of North Carolina at Chapel Hill 

Eric W. Browning v. UNC-Chapcl Hill 

UNC Hospitals 

Barry Alonzo Nichols v. UNC Hospitals Central Dist. Sect. 

The WMtaier School 

Dwayne R. Cooke v. The Whitaker School 

STATE TREASURER 

Retirement Systems Division 

Molly Wiebenson v. Bd./Trustees/TeacheiB' & State Employees' Ret. Sys. 
Nathan Fields v. Bd./TrusteesAeachem' & State Employees' Ret. Sys. 
John C. Russell v. Bd. /Trustees/Teachers' & State Employees' Ret. Sys. 
Robert A. Slade v. Bd./Trustees/N.C. Local Govtl. Emp. Ret. System 
James E. Walker, Ind. &. Admin for the Estate of Sarah S. Walker v. Bd./ 

Trustees/N.C. Local Govt. Emp. Ret. System 
Elizabeth M. Dudley v. Bd^rusteesATeacheiB' &. State Emps" Ret. Sys. 
Kenneth A. Glenn v. Bd./Tru6tees/Teachem' & St Employees' Ret. Sys. 
Joseph Fulton v. Bd./Trustees/Teacheis' & State Employees' Ret. Sys. 



DATE OF 
DECISION 



04/11/94 



03/18/94 



04/14/94 



05/26/94 



PUBLISHED DECISION 
REGISTER CITATION 



93 OSP 0297* 1 


Morrison 


03/10/94 


9:1 NCR 


60 


93 OSP 0500* 1 


Morrison 


03/10/94 


9:1 NCR 


60 


93 OSP 0550 


Morrison 


03/28/94 






93 OSP 0944 


Chess 


02/28/94 






93 OSP 1710 


Nesnow 


05/24/94 







93 OSP 0925 



94 OSP 0509 



94 OSP 0328 



Morrison 05/03/94 



Morrison 06/15/94 



Chess 



06/02/94 



92 DST 0015 

93 DST 0161 
93 DST 0164 
93 DST 0785 
93 DST 1054 

93 DST 1474 
93 DST 1612 
93 DST 1731 



Morgan 05/26/94 

Morrison 05/18/94 

West 03/07/94 

Becton 03/18/94 

Becton 05/31/94 

Nesnow 03/28/94 

Morrison 05/18/94 

Becton 05/25/94 



9:5 NCR 342 



9:6 NCR 403 



9:1 NCR 68 

9:7 NCR 490 



489 



9:7 



NORTH CAROLINA REGISTER 



July 1, 1994 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF MECKLENBURG 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

93 DST 1054 



JAMES E. WALKER, INDIVIDUALLY AND 
AS ADMINISTRATOR FOR THE ESTATE 
OF SARAH S. WALKER, 
Petitioner, 



v. 



THE BOARD OF TRUSTEES OF THE NORTH 
CAROLINA LOCAL GOVERNMENT 
EMPLOYEES' RETIREMENT SYSTEM, 
Respondent 



RECOMMENDED DECISION 



This matter was heard before Brenda B. Becton, Administrative Law Judge, Office of Administrative 
Hearings, on February 2, 1994 in Charlotte, North Carolina. 



For Petitioner: 



For Respondent: 



APPEARANCES 

FERGUSON, STEIN, WALLAS, ADKINS, GRESHAM & SUMTER, P. A., Attorneys at 
Law, Charlotte, North Carolina; John W. Gresham appearing. 

Alexander McC. Peters, Assistant Attorney General, N.C. Department of Justice, 
Raleigh, North Carolina. 

ISSUE 



Whether Sarah Walker's beneficiary is entitled to an award of the Death Benefit as provided in 
N.C.G.S. 128-27(1). 

FINDINGS OF FACT 

A. PROCEDURAL HISTORY 

1. On July 12, 1993, James Walker, Petitioner (hereinafter "Petitioner") sought final agency 
review of the Retirement System's (hereinafter "Respondent") decision to deny to Petitioner the death benefit 
provided under N.C.G.S. 128-27(1). 

2. On August 7, 1993, Petitioner, through counsel received notice of the agency's final decision, 
pursuant to Rule .0401 subchapter 2A, Title 20 of the North Carolina Administrative Code that again denied 
he Petitioner's appeal of the agency's earlier decision. 

3. On October 4, 1993, Petitioner, through counsel filed a Petition for a Contested Case Hearing 
n the Office of Administrative Hearings, pursuant to N.C.G.S. 150B-23. 

4. Upon Respondent's motion, the caption in the case was amended to replace the "Department 
of State Treasurer, Retirement Systems Division" with the "Board of Trustees of the North Carolina Local 
Government Employees' Retirement Systems. " 



9:7 



NORTH CAROLINA REGISTER 



July 1, 1994 



490 



CONTESTED CASE DECISIONS 



5. A contested case hearing was held on February 2, 1994 before Judge Brenda Becton in 
accordance with N.C.G.S. 150B-23(b) and the Rules of Contested Case Hearings. 

6. The parties requested copies of the hearing tapes and were ordered to file their proposed 
recommended decisions within 30 days of the mailing of the tapes. 

B. BACKGROUND - SARAH WALKER'S EMPLOYMENT HISTORY 

7. In December of 1977 Sarah Walker (hereinafter "Walker") was hired by Mecklenburg County 
(hereinafter "County") as a social worker. Thirteen years later, in May of 1990, she was diagnosed with 
terminal cancer. Shortly thereafter, on June 1, 1990, Walker was placed on Medical Leave with pay from 
the County. Within a year she was placed on Medical Leave Without Ray, effective March 12, 1991. 
(Plaintiff's Exhibit 1). 

8. On May 17, 1991 Walker's husband, Petitioner James Walker (hereinafter "Petitioner"), 
received a letter from Stephen Barr, Benefits Administrator for Mecklenburg County Personnel Department 
(hereinafter "Barr"), summarizing benefits for Walker as a County Employee on Medical Leave and 
summarizing the benefits which would be available to her if she retired. 

9. Barr's letter specifically indicated that Walker's Medical Leave status could continue for one 
year, after which, if she were unable to work, she would at that point be terminated from employment 
(Plaintiff's Exhibit 2). 

10. In addition, Barr indicated that life insurance benefits payable to Walker's beneficiary should 
she die within the one year Medical Leave period would include a $20,000 Death Benefit through Retirement 
Systems if her death were to occur within 180 days from the last day salary was paid, where salary "would 
include pay for use of accrued benefit days." (Plaintiff's Exhibit 2 at 1). 

1 1 . Barr went on to indicate that retirement status would not adversely affect payment of the 
Death Benefit so long as Walker's death occurred within 180 days from the last day salary was paid: "[e]ven 
if Mrs. Walker retires, should she die within 180 days of the last day for which 'salary' was paid, the $20,000 
Death Benefit from the Retirement System would [still] be applicable." (Plaintiff's Exhibit 2 at 2). This 
information was consistent with the handbook, Your Retirement Benefits, published by the Department of State 
Treasurer, Retirement Systems Division. 

12. Walker applied for disability retirement on June 17, 1991. Her application, Employer 
Certified by Barr, included the following information: the effective date of retirement - August 1, 1991; the 
"Last day of employment" - July 31, 1991; and the last date for which compensation would be paid - July 31, 
1991. (Plaintiff's Exhibit 3). 

13. Walker's Application for Disability Retirement was approved by the Medical Board on July 
24, 1991, and on August 1, 1991, Walker officially retired from the County. (Plaintiff's Exhibit 4).** 

14. Up until her retirement, Walker continued to receive compensation from the County for 
accrued benefits. Walker received statements of earnings for periods ending March 22, 1991 and May 31, 
1991, both of which reflect an accrued benefit of .23 sick days. Retirement payments were also deducted 
from Walker's earnings during this period. In addition, on August 9 Walker received a check from the 
County reflecting a Longevity Payment totalling $214.55 and an Accrued Benefit Payment of $6.87 
representing payment for .23 sick days accumulated through July 31, 1991. This was the last payment she 
received from the county. (Plaintiffs Exhibit 5). 



— Sarah Walker's Application for Retirement, Respondent's Exhibit 1 , contains handwritten changes to the "last date of employment" and the "last date 
compensationwillbepaid" sections. The Respondent acknowledged that these changes were made by clerical staff in the Respondent's office, but offered 
no evidence regarding a basis for the changes. 



491 9:7 NORTH CAROLINA REGISTER July 1, 1994 



CONTESTED CASE DECISIONS 



15. Petitioner was appointed Legal Guardian for his wife on October 8, 1991, and on October 
18, 1991 she died. (Plaintiff's Exhibit 6). 

C PETITIONER'S REQUEST FOR AND RESPONDENT'S DENIAL OF DEATH BENEFIT 

Petitioner's Request for Payment 

16. On October 29, 1991 Robert Gourley, attorney for Petitioner (hereinafter "Gourley"), sent 
letter to Mecklenburg county requesting payment of the $20,000 Death Benefit for Walker's beneficiary, 

her husband James Walker (Petitioner) . 

17. On November 5, 1991, in response to Gourley's request for payment, Stephen Barr on behalf 
f the county stated that he had been advised that the $20,000 Death Benefit is payable only if the employee 

died "within 180 days of the last day of work". (Plaintiff's Exhibit 7, second emphasis in original). Barr went 
on to define the last day of work as the last day the person was "actually on the job" which in Mrs. Walker's 
;ase was June 1, 1990. Based upon this revised interpretation, Barr concluded that Walker's death occurred 
utside of the 180 day period and thus the Death Benefit would not be payable. (Id.) 



18. Barr's November 5, 1991 correspondence acknowledged that Walker had accrued .23 sick 
lays as of the date she was placed on Medical Leave without Pay. (Id.) 

19. Barr's November 5, 1991 letter directly contradicts his May 17, 1991 correspondence 
ndicating that the 180 day period began from the last day for which salary (including accrued benefits) was 
)aid, not the last day of work. 

Respondent's Initial Asserted Grounds for Denial of Payment 

20. Following a request on November 11, 1991 from Gourley for all relevant documents 
ontrolling the payment of the death benefit, Timothy Bryan, Chief of the Member Services Section of 
Retirement Systems Division (hereinafter "Bryan"), sent Gourley what he stated were the sections of North 
Carolina General Statutes addressing eligibility for the Death Benefit payment. (Plaintiff's Ex. 9). The 
pecific provision enclosed was N.C.G.S. 128-27(1) which states that the 180 day period begins from the last 
lay of the employee's "actual service. " 

21. Pursuant to N.C.G.S. 128-27(1), subsections (2)(a) and (2)(b), the last day of actual service 
determined in one of two ways, depending on whether the employment has been terminated. If terminated, 

le last day of actual service is the last day the member actually worked, (subsection (2)(a)). When 
mployment has not been terminated, last day of actual service is considered to be "the date on which an 
bsent member's sick and annual leave expires." (subsection (2)(b)). 

22. Bryan's November 21, 1991 correspondence to Gourley did not make clear which of the 
revisions, subsection (2)(a) or (2)(b), was applied by the Respondent Retirement System to Sarah Walker's 
ase and resulted in Respondent's denial of the Death Benefit. (Plaintiff's Exhibit 9). 

23. In a subsequent letter, Bryan reiterated that the applicable provision of the North Carolina 
Jeneral Statutes is section 128-27(1). In what appears to be an attempt to clarify the 180 day calculation, 
iryan stated that the effective date of Walker's Medical Leave Without Pay — March 31, 1991 — was the date 
vm which the 180-day period began: "[e]ven if Mrs. Walker had remained on Leave Without Pay, her 180 
ays would have expired on September 27, 1991. Due to the fact that her death occurred October 18, 1991, 
le 180 days had lapsed." (Plaintiff's Exhibit 10). 

24. This correspondence does not indicate why March 31, 1991 is the dispositive date and it 
lakes reference neither to any termination date of Sarah Walker's employment nor to any different provision 
>r determining the status of members who have taken a leave of absence. 



NORTH CAROLINA REGISTER July 1, 1994 492 



CONTESTED CASE DECISIONS 



25. In addition, Bryan stated that since employees of Mecklenburg County Personnel Department 
"are not under our administrative authority and are not agents of this department" thee Retirement Systems 
Division is not responsible for the actions of employees of Mecklenburg County. (Plaintiffs Exhibit 10). 

Respondent's Additional Asserted Grounds for Denial 

26. Bryan's February 8, 1993 letter to John Gresham, Attorney for Petitioner, reiterated his 
position that Section 128-27(1) provides for a determination of the "last day of actual service." In his 
correspondence with Petitioner, Bryan raised a new argument for denying the benefit based upon a statutory 
provision dealing with leaves of absence. However, the Respondent did not advance this argument at the 
hearing. Bryan then determined that, since at the time of her death her employment had been terminated (he 
did not indicate the date of termination), "her last day would have been the last day she actually worked, 
which appears to be no later than March 12, 1991." 

27. The March 12 date was not, in fact, Sarah Walker's actual last day of work, since she had 
been on Medical Leave since June 1, 1990. Rather, March 12, 1991 is the date her status changed from 
Medical Leave to Medical Leave Without Pay. 

28. Bryan acknowledged that Ms. Walker had received payment for her accrued benefit but 
concluded that the payment for .23 sick days and the longevity payment "do not reflect any additional service, 
nor do they represent any service which would cause her last day of service to be within 1 80 days of her 
death." 

29. The statute does not require additional service, it requires that: "Where employment has not 
been terminated, the date on which an absent member's sick and annual leave expire." N.C.G.S. 128 

27(l)(2)(b). 

Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge makes th< 
following: 

CONCLUSIONS OF LAW 

1. Based upon the evidence and arguments of counsel, the issue to be decided in this matter is 
whether an employee who is granted a disability retirement has been "terminated" under the provisions 
defining "last day of actual service" in N.C.G.S. 128-27. This issue must be determined in light of the 
applicable principles governing statutory construction set out herein. 

2. A statute such as N.C.G.S. 128-27 is considered a remedial statute in that it confers benefits 
on a class of individuals. Burgess y Joseph Schlitz Brewing Co. . 298 N.C. 520, 259 S.E. 2d 248, 251 
(1979); Hicks y. Brown Shoe Co., 306 S.E.2d 543, 545 (N.C. App. 1983) (interpretation of worker': 
compensation statute in action for award of death benefit); Derebey y^ Pitt County Fire Marshall , 318 N.C. 
192, 347 S.E. 2d 814, 818 (1986). A remedial statute should be construed liberally, "in a manner which 
assures the beneficial goals for which it is enacted and which brings within it all cases fairly falling within 
its intended scope." Burgess , 259 S.E. 2d at 251. See also Carolina Builders Corp. y. Howard- Veasev , 72 
N.C.App. 224, 324 S.E.2d 626, review denied 313 N.C. 597, 330 S.E.2d 606 (1985) (definition of "owner" 
in materialman's lien act, considered a remedial statute, should be broadly construed in order to advance the 
legislative intent in enacting it); Newsome y. N.C. State Bd. of Elections , 105 N.C.App. 499, 415 S.E.2c 
201 (1992). The Burgess court further stated: 

A construction which operates to defeat or impair the object of the statute must be avoided 
if that can reasonably be done without violence to the legislative language. To this end, the 
words and phrases of a statute must be interpreted contextually, in a manner which 
harmonizes with the other provisions of the statute and which gives effect to the reason and 
purpose of the statute. 



493 9:7 NORTH CAROLINA REGISTER July 1, 1994 



CONTESTED CASE DECISIONS 



Burgess , 259 S.E.2d at 251. 

In Burgess the court stated "[amplication of the above principles leads us to conclude that the 
restrictive definition of 'visually handicapped' in N.C.G.S. 111-11 should not be applied in a manner which 
limits the meaning of 'visual disability' in N.C.G.S. 168-1." Id. Application of the above principles in the 
Walker case indicate that the word terminate should not be construed to limit the definition of retire, especially 
where such an interpretation will defeat the object of the statute itself which is to provide a benefit to those 
members of the retirement system who die, as Sarah Walker did, before they have obtained the full benefit 
of their years of contribution to the system. 

3. In interpreting a statute, the prior interpretations, whether formal or informal, given to the 
statute by an agency that executes and administers it, are not dispositive but are to be given great weight. 
Sides V. Cabarrus Memorial Hospital , 287 N.C.14, 213 S.E.2d 297 (1975) (court considered letters from 
various state and federal agencies holding that hospital was an agency of the county and not a separate 
Municipal agency of the state). While the Retirement Systems Division asserts in this case that a disability 
•etirement should be considered to have "terminated" employment so that the last day actually worked 
institutes the beginning of the six-month statutory period for determining eligibility for the death benefit, the 
iame agency has specifically distinguished a termination of employment from retirement in its own 
Hiblications. The Division's own handbook, Your Retirement Benefits , notes that coverage of a member for 
he Disability income plan will cease upon: 

(1) the termination of your employment as a State teacher or State employee, 

(2) your retirement under the provisions of ... the retirement system, 

(3) your becoming a beneficiary under the plan, or 

(4) your death. 

four Retirement Benefits , p. 37 (1993)(emphasis added). 

4. The agency's recognition that a "retirement" does not constitute a "termination" and is 
herefore a distinct classification is consistent with the interpretation given by our state courts and courts 
hroughout the country. 

The North Carolina Court of Appeals recently recognized that an employee may leave his 
mployment through "termination, early retirement, or other job change." Wilkens v. Wilkens . 1 1 1 N.C.App. 
41, 432 S.E.2d 891, 892 (1993) (emphasis added). Likewise the insurance policies at issue in a death benefit 
latter distinguished between "termination of employment" and "retirement". First National Bank y^ 
Jationwide Insurance Co., 303 N.C.329, 278 S.E.2d 507, 515 (1981). These cases are consistent with the 



onclusion, long recognized by the courts, that unlike termination, retirement is not tantamount to a final 
bandonment of the employment relationship. Le Grange v. Datsis , 142 Me. 48, 53, 46 A. 2d 408, 410 
1946), and retirement is not synonymous with a dismissal or termination. Brown v. Little. Brown. & Co. . 
69 Mass. 102, 168 N.E. 521 (1929) (stockbroker who was required to give up stock if he "retired" not 
squired to surrender stock where he was terminated by company). 

5. Moreover, as the Respondent's witnesses acknowledged, their interpretation of the statute, 

'hich equated retirement with termination, would have a draconian impact on a system member who has a 
>ng term illness and then takes a disability retirement. For instance, an employee who (a) used sick leave 
:om July 1 until December 3 1 , (b) took retirement on December 3 1 , and (c) dies on January 1 of the next 
ear would receive no death benefit even though the retirement system had received full contributions from 
le employee through December 31. There is no indication that this result was intended by the legislature 
hen the provisions of N.C.G.S. 128-27(1) were enacted. State Ex. ReL Com'r of Ins. v. N.C. Auto. Rate 
dmin. Office. 294 N.C. 60, 241 S.E.2d 324, 329 (1978) (legislature not to be construed to obtain untoward 



ssults). 



:7 NORTH CAROLINA REGISTER July 1, 1994 494 



CONTESTED CASE DECISIONS 



6. Having concluded (a) that this statute granting benefits to retirement system members is to 
be liberally construed, and (b) that both applicable case law and the agency's own interpretation recognizes 
that retirement is distinct from termination, the Administrative Law Judge further concludes that for purposes 
of determining Petitioner's eligibility for the death benefit, Sarah Walker was not "terminated" from her 
employment. Therefore, under the provisions of subsection (2)(b) of N.C.G.S. 128-27(1), her last day of 
actual service will be the date on which her sick and annual leave expired which was July 31, 1991. 

7. Since Sarah Walker's death occurred well within 180 days of July 31, 1991, Petitioner is 
entitled to the death benefit as permitted in N.C.G.S. 128-27(1). 

RECOMMENDED DECISION 

The Board of Trustees of the North Carolina Local Government Employees' Retirement System will 
make the Final Decision in this contested case. It is recommended that the Commission adopt the Findings 
of Fact and Conclusions of Law set forth above and award the Petitioner the Death Benefit to which he is 
entitled because Sarah Walker's death occurred within the requisite 180 day period. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the Board of Trustees of the 
North Carolina Local Government Employees' Retirement System. 

This the 31st day of May, 1994. 



Brenda B. Beeton 
Administrative Law Judge 



495 9:7 NORTH CAROLINA REGISTER July 1, 1994 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF MECKLENBURG 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

94 EHR 0329 



SAM'S CLUB #8219, 
Petitioner, 



MECKLENBURG COUNTY HEALTH DEPT., 
Respondent. 



RECOMMENDED DECISION 



This matter came on for hearing before Administrative Law Judge Dolores O. Nesnow on June 8, 
1994, in Charlotte, North Carolina. 



STATEMENT OF THE CASE 



Petitioner received a notice of intent to suspend its permit to operate a pushcart by the Mecklenburg 
bounty Health Department on February 14, 1994. That notice informed Petitioner of its appeal rights and 
loted that the suspension would not go into effect if Petitioner appealed. Petitioner filed a Petition for 
Contested Case hearing on March 16, 1994. 

Petitioner then received an Order for Prehearing Statements and an extension on that Order, 
'etitioner did not respond to either of those Orders. Petitioner received due and timely notice of hearing on 
tfay 9, 1994. Petitioner did not appear at the hearing. 

The undersigned requested the Respondent to determine the identity of the person who signed for the 
Notice of Hearing, "H. Montgomery". In attempting to get that information, Respondent learned that the 
epresentative of Sam's Club, Darrin Boatwright, was at the store and would come over to the hearing site 
if requested." 

The Respondent made a Motion to impose sanctions for failure to comply with Prehearing Orders. 
Tie undersigned, in an effort to the hear the case on the merits, denied the Motion and requested that the 
■etitioner be informed to get to the hearing immediately. Petitioner, Darrin Boatwright, Operations Manager, 
ppeared at the hearing approximately 30 minutes after the phone call. 

Corporate headquarters for Sam's is out of State. Darrin Boatwright is not a Corporate officer, but 
the Operations Manager for Store #8219, the retail site in issue. Respondent did not object to Mr. 
loatwright appearing on behalf of Sam's #8219. 



For Petitioner: 



For Respondent: 



APPEARANCES 

Darrin Boatwright, Operations Manager 
Sam's Club 

1801 Windsor Square Drive 
Matthews, North Carolina 28105 
Petitioner - Pro Se 

Grady L. Balentine, Jr. 
Associate Attorney General 
N. C. Department of Justice 
P. O. Box 629 



NORTH CAROLINA REGISTER 



July 1, 1994 



496 



CONTESTED CASE DECISIONS 



Raleigh, North Carolina 27602-0629 
Attorney for Respondent 

ISSUE 

Should the Petitioner's pushcart permit be suspended? 

FINDINGS OF FACT 

1. On June 25, 1993, the Mecklenburg County Health Department (MCHD) received an 
application for a Pushcart Permit from Sam's #8219. 

2. During the subsequent permitting process, Petitioner signed a MCHD form which reproduced 
the pertinent text of the rules applicable to Pushcart Permits. 

3. The Rules which were reproduced on the document noted above are the following: 

"Pushcarts and mobile food units shall operate in conjunction with a permitted 
restaurant and shall report at least daily to the restaurant for supplied, cleaning, and 
servicing." 15A NCAC 18A .2600 (f), (emphasis added) and 

"A servicing operations area must be established at a restaurant for the mobile food 
unit. Potable water servicing equipment shall be installed, stored, and handled in a way that 
protects the water and equipment from contamination. The mobile food unit's sewage storage 
tank shall be thoroughly flushed and drained during servicing operation. All sewage shall 
be discharged to an approved sewage disposal system." 
15 A NCAC 18A .2640(g). 

4. This form also contained a provision which stated that the document had been read and 
understood. That document was signed by a Steve Leonard, as the Restaurant Operator and Jerry Stone, the 
Pushcart Operator. 

5. The Pushcart Permit was issued on 6/23/93 and the pushcart was placed just inside the front 
doors of Sam's and was to sell hot dogs and soft drinks. 

6. The pushcart was a large unit measuring approximately 4 feet by 8 feet. 

7. The permit was issued on the signed agreement that the pushcart was to be transferred to its 
conjunction restaurant at WalMart, which restaurant is not in the same shopping center as Sam's. 

8. Susan Cole, an Environmental Health Specialist with MCHD, was the inspector assigned to 
conduct the permitting process. 

9. Ms. Cole did not question the distance between the locations nor the size of the pushcart since 
the application was completed for this arrangement and both parties signed the document stating that they had 
read, understood, and agreed, to comply with the pushcart regulations. 

10. Every pushcart permitted by MCHD have to be returned each day to their sponsoring 
restaurant for cleaning. 

11. All pushcarts must be freestanding units and are permitted only to sell hotdogs and soft 
drinks. 



497 9:7 NORTH CAROLINA REGISTER July 1, 1994 



CONTESTED CASE DECISIONS 



12. After Ms. Cole completed the permitting process, the matter was assigned to Pamela Grubbs, 
Environmental Health Specialist with MCHD, whose job it is to inspect permit sites subsequent to their 
permitting. 

13. Bill Hardister, the MCHD Program Chief for Food and Sanitation, supervised both Ms. Cole 
and Ms. Grubbs. He saw the pushcart while shopping in the store. He noticed the permit which was posted 
indicated "pushcart" but he also noticed that the unit was hardplumbed and wired. He requested that an 
inspection be conducted. 

14. On August 11, 1993, Ms. Grubbs visited Sam's Club and found a number of violations. 

15. During that inspection, Ms. Grubbs found that the pushcart, which by regulation must be 
freestanding, had been hardplumbed and was also connected to electrical wiring. 

16. Ms. Grubbs also found that the pushcart employees were using the employees' breakroom 
to store food and to wash equipment. 

17. Ms. Grubbs completed an Inspections Report noting the violations and left a copy of it with 
the Petitioner. She subsequently sent Petitioner a copy of the regulations. 

18. Ms. Grubbs' second inspection was on December 16, 1993. She found that none of the 
previous violations had been remedied. 

19. After speaking with the Petitioner, who explained that the unit was so large they could not 
readily transport it to WalMart, she suggested that they take all removable pans to WalMart each day for 
cleaning as a temporary remedial measure. 

20. Ms. Grubbs returned to the MCHD and discussed the problem with her supervisor, Bill 
Hardister. They considered the possibility of the pushcart being permitted as a "Food Stand" or as a 
"Restaurant". 

21. Additional requirements would have to be met before the pushcart could qualify for either 
af these permits. 

22. On February 14, 1994, Ms. Grubbs made her third inspection. She again found that no 
violations had been remedied. She then issued an Intent to Suspend the Permit. 

23. At the time of this hearing, the pushcart is still operating in the same condition as it was 
luring the last year. The Petitioner has not submitted an application for a Food Stand or Restaurant Permit. 

24. Damn Boatwright, the Operations Manager, testified and it is found as feet, that the pushcart 
lad units added to it which sold frozen yogurt and fountain drinks. Fountain drinks are sodas dispensed from 
i unit which combines the carbonated water and the syrup just before the soda is released by the use of a pull 
landle. 

25. Mr. Boatwright was not present at the inspections but was present during management 
neetings at which the pushcart permitting problem was discussed. 

26. Mr. Boatwright testified that he was attempting to remedy the problem by complying with 
he suggestions made by Ms. Grubbs. He testified that he has a three basin sink on site but not installed. He 
Mtified that he knows he needs a hot water heater but that he was having problems getting all the materials 
ecause the home office wanted him to use materials from their own stores. He also testified that there had 
•een a truckers strike which had slowed down the delivery of the material. 



NORTH CAROLINA REGISTER July 1, 1994 498 



CONTESTED CASE DECISIONS 



27. Mr. Boatwright testified that he runs a multi-million dollar business and does not have time 
to worry about a hotdog stand. 

28. Mr. Boatwright also testified that he did not respond to the Prehearing Orders because he was 
very busy and did not always see his mail. He also testified that he did not initially appear at the hearing 
because he did not see the Notice of Hearing. 

29. Mr. Boatwright also testified that he apologizes for any oversights but that he doesn't 
understand why the State is spending money on a hearing and making such a fuss over a simple hotdog stand. 
He testified that he does not have time to deal with all this. 

Based on the foregoing Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1. The Petitioner was aware of the regulations concerning Pushcart Permits and signed a 
document of understanding. The Petitioner's signature as well as the Restaurant operator's signature appeared 
on that document. 

The Petitioner has been in violation of the Pushcart Permit regulations for approximately a 

year. 

Although Petitioner asserts that he does not have time to deal with this permit violation, it 
is noted that he has gone to a great degree of bother to hardplumb the pushcart and to connect it to electricity. 

Additionally, the Petitioner has bothered to adjoin a frozen yogurt unit and a soda fountain 
unit. 

The Respondent attempted to assist the Petitioner to come into compliance but the Petitioner 
to this date had not corrected any of the violations. 

2. It is concluded that Petitioner is in violation of 15A NCAC 18A .2683(f) in that the pushcart 
has never reported to the restaurant for cleaning, the unit was permanently affixed to the premises so that it 
could not be moved, and additional food services were added without proper permitting. 

Based upon the above Conclusions of Law, the undersigned makes the following: 

RECOMMENDATION 

1 . That the Petitioner's permit to operate a pushcart be suspended until such time as they come 
into compliance with the permitting laws and regulations. 

2. That since Petitioner has shown that leniency and compliance time are not used for the 
purpose for which they are intended, any future violations of the health and sanitation laws of the State of 
North Carolina be handled with great dispatch and immediacy. 

MEMORANDUM OF LAW 

The undersigned believes that the circumstances of this case warrant a revocation of the permit rather 
than merely a suspension. However, Petitioner received notice only that he was being suspended and the 
Petitioner cannot be sanctioned with a sanction greater than the one for which he received notice. 

The Petitioner paid very little attention to the directions of the inspector and to the laws of the State 
of North Carolina. Petitioner deliberately and immediately violated the agreement which it had signed by 
hardplumbing and wiring the unit and by attaching a frozen yogurt machine and a soda fountain machine. 



499 9:7 NORTH CAROLINA REGISTER July 1, 1994 



CONTESTED CASE DECISIONS 



Because of this blatant disregard of the law, the Petitioner's permit should have been revoked and a 
period of mandatory suspension imposed. The enabling legislation, much to the benefit of the Petitioner, does 
not provide for such sanctions. 

The undersigned further would have imposed civil penalties if the enabling legislation had a provision 
for such penalties. Again, much to the benefit of Petitioner, the legislation does not provide for such 
sanctions. 

The undersigned considered holding the Petitioner in contempt of court for failure to respond to the 
Prehearing Orders, failure to appear at the hearing, and repeated commentary during the hearing about the 
annoyance of the permit requirements and of the hearing, which, it is noted, Petitioner requested. 

Petitioner's representative offered an apology for any disrespect to the court or to MCHD. An 
apology is not a curative recognized in the legal system and that offer has no bearing on the violation. 
However, since the Petitioner appears to have made some meager attempts to come into compliance and since 
this representative may not accurately reflect the opinions of the corporation, the Petitioner's representative 
will not be held in contempt at this time. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
l50B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
)pportunity to file exceptions to this recommended decision and to present written arguments to those in the 
igency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
urnish a copy to the parties' attorney of record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the North Carolina Department 
if Environment, Health and Natural Resources. 



This the 15th day of June, 1994. 



Dolores O. Nesnow 
Administrative Law Judge 



•7 NORTH CAROLINA REGISTER July 1, 1994 500 





NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 




1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two 


of these, 


titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 


department in the North Carolina executive branch of government has been assigned a title number. 


Titles are further broken down into chapters which shall be numerical in order. The other two, 


subchapters and sections are optional subdivisions to be used by agencies when appropriate. 




TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 


TITLE DEPARTMENT LICENSING BOARDS 


CHAPTER 


1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneers 


4 


4 


Commerce 


Barber Examiners 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetic s/Nutrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Environment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Public Education 


Landscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary of State 


Medical Examiners 


32 


19A 


Transportation 


Midwifery Joint Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursing 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Speech & Language Pathologists & Audiologists 


64 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 


Note: Title 21 contains the chapters of the various occupational licensing boards. 




501 


9:7 NOR 


TH CAROLINA REGISTER Jw 


ty 1, 19% 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1994 - March 1995) 

Pages Issue 

1 - 75 1 - April 

76 - 122 . 2 - April 

123 - 226 3 - May 

227 - 305 4 - May 

306 - 348 5 - June 

349 - 411 6 - June 

412 - 503 7 - July 



Unless otherwise identified, page references in this Index are to proposed rules. 



\GRICULTURE 

Plant Industry, 127 

COMMERCE 

Alcoholic Beverage Control Commission, 423 
Energy Division, 4 

:rime control AND PUBLIC safety 

State Highway Patrol, Division of, 243 

iNVmONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management, 443 

DEM/ Air Quality, 80 

Departmental Rules, 254 

Environmental Management, 81, 258, 352 

Health Services, 323, 370, 445 

Mining Commission, 442 

NPDES Permit, 3, 232 

Solid Waste Management, 171, 364 

Water Resources, 165, 255 

Wildlife Resources Commission, 38, 42, 84, 358 

Wildlife Resources Commission Proclamation, 125 

TNAL DECISION LETTERS 

Voting Rights Act, 2, 312 

JOVERNOR/LT. GOVERNOR 

Executive Orders, 1, 123, 227, 306, 349, 412 

lUMAN RESOURCES 

Child Day Care Commission, 10 

Children's Services, 136 

Day Care Rules, 148 

Facility Services, 4, 128, 423 

Medical Assistance, 318, 440 

Mental Health, Developmental Disabilities and Substance Abuse Services, 13, 24, 36, 313, 430 



:7 NORTH CAROLINA REGISTER July 1, 1994 502 



CUMULATIVE INDEX 



Social Services, 136 

Vocational Rehabilitation Services, 434 

INDEPENDENT AGENCDZS 

State Health Plan Purchasing Alliance Board, 99 

INSURANCE 

Multiple Employer Welfare Arrangements, 76 
Special Services Division, 76 

JUSTICE 

Alarm Systems Licensing Board, 351 

Criminal Justice Education and Training Standards Commission, 149 

State Bureau of Investigation, 234 

LABOR 

Mine and Quarry Division, 239 
OSHA, 77, 160 
Variance, 230 

LICENSING BOARDS 

Acupuncture Licensing Board, 44 

Chiropractic Examiners, 376 

Cosmetic Art Examiners, 280 

Landscape Architects, Board of, 95 

Medical Examiners, 192 

Nursing, Board of, 45 

Optometry, Board of Examiners, 194 

Plumbing, Heating and Fire Sprinkler Contractors, Board of, 96 

Practicing Psychologists, Board of, 97 

Professional Counselors, Board of Licensed, 50 

LIST OF RULES CODIFIED 

List of Rules Codified, 53, 196, 281, 378 

PUBLIC EDUCATION 

Elementary and Secondary Education, 375 

SECRETARY OF STATE 

Securities Division, 476 

STATE PERSONNEL 

Office of State Personnel, 477 

TAX REVIEW BOARD 

Orders of Tax Review, 415 

TRANSPORTATION 

Highways, Division of, 85 

Motor Vehicles, Division of, 89, 276 



503 9:7 NORTH CAROLINA REGISTER July I, 1994 



NORTH CAROLINA ADMINISTRATIVE CODE 

The fall publication consists of 53 volumes, totaling in excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the full publication including supplements can be 
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